G.R. No. 37374; March 18, 1933
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. FELICIANO EMBALIDO, defendant-appellant.

FACTS

The appellant, Feliciano Embalido, was charged with murder for killing Felix Cabiguin. He admitted the killing but claimed he surprised his wife and the deceased engaged in sexual intercourse, which would qualify the act under Article 247 of the Revised Penal Code (providing a lighter penalty of destierro). The trial court convicted him of murder, appreciating the mitigating circumstances of illiteracy and voluntary surrender, and sentenced him to cadena temporal.

ISSUE

Whether the appellant is guilty of murder, homicide, or should be penalized under Article 247 of the Revised Penal Code for killing a person caught in the act of committing sexual intercourse with his spouse.

RULING

The Supreme Court modified the trial court’s decision. It held that the evidence did not support a finding of murder, as wounds on the deceased’s back did not conclusively prove treachery (alevosia). The crime committed was homicide, not murder. Furthermore, the evidence did not sufficiently establish that the appellant actually surprised his wife and the deceased in the act of sexual intercourse; therefore, the privileged mitigating circumstance under Article 247 did not apply. Appreciating the mitigating circumstances of illiteracy and voluntary surrender, the Court sentenced the appellant to prision mayor for homicide, to be served after completing a sentence for parricide in another case. The indemnity to the heirs was affirmed.

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