58 Phil.

283

ABAD SANTOS, J .:

The appellant in this case was convicted of the crime of murder by the Court of First Instance of
Occidental Negros, and sentenced to suffer the penalty of perpetual reclusion, to indemnify the
parents of the deceased in the sum of P1,000, with the accessory penalties prescribed by law,
and to pay the costs. On this appeal, her counsel ex officio attacks the findings of fact of the trial
court, but does not raise any question of law.

The questions of fact involved in this case are fully discussed in a well considered decision of the
trial court, presided over by the then Judge Quirico Abeto, which decision reads as follows:

"Magdalena Caliso has been charged with the crime of murdering a 9-month-old child, who took
place in La Carlota, Negros Occidental, on February 8, 1932. The complaint alleges that the
accused, Emilio Esmeralda, jr., A 9-month-old boy, is a volunteer, illegal and criminal, and for the
purpose of satisfying revenge, I administer a quantity of concentrated acetic acid, which is a
poisonous substance, causing burns in the mouth, throat, intestines and other vital parts of the
internal organs that necessarily caused the death of the victim, who succumbed a few hours
later, that in the commission of this crime, aggravating circumstances of treachery,abuse of trust
and that the act has been committed in the home of the victim's parents.

to whom a judgment could deprive of all the benefits that life offers. On the other hand, a
mother crazy in pain who has lost the only male child of the family and who considers the
accused as the person who has snatched his only affection. That is why the Court has tried, as far
as possible, to put all its attention on all the details of the evidence, observing even the smallest
acts of the witnesses and the accused.

Then she shouted asking who had put acetic acid in the mouth of her son, and since she is a
pharmacist by profession, she immediately agreed on an antidote that could neutralize the
effects of acetic acid and she herself lime water and wetting a hydrophilic cotton, I cleaned the
boy's mouth, and at the same time sent his husband to telephone the doctor. A few moments
later came Dr. Augusto Locsin, who according to his statement, immediately noticed the smell of
acetic acid in the child's breath, and wanted to make the first cure, washing the child's stomach,
but the mother did not want the washing to arrive to the stomach, for fear of hurting the boy's
throat with the catheter, and for this reason the washing could only be done up the throat of the
child. After some time, they arrived, from Bacolod, Drs. Orosa and Ochoa, who by telephone had
also been called by the victim's father. Dr. Orosa is the chief physician of the Provincial Hospital
of this province, and Dr. Ochoa is one of the doctors residing in that hospital, a specialist in
diseases of the five senses. Both doctors stated positively that they had perceived the odor of
acetic acid in the child's breathing, and having concluded that the boy had become acetic acid,
applied the cure to remove that substance from the child's body, and after making the first
cures, took the child to the provincial hospital and died there a few minutes after arriving. Orosa
is the chief physician of the Provincial Hospital of this province, and Dr. Ochoa is one of the
doctors residing in that hospital, a specialist in diseases of the five senses. Both doctors stated
positively that they had perceived the odor of acetic acid in the child's breathing, and having
concluded that the boy had become acetic acid, applied the cure to remove that substance from
the child's body, and after making the first cures, took the child to the provincial hospital and
died there a few minutes after arriving. Orosa is the chief physician of the Provincial Hospital of
this province, and Dr. Ochoa is one of the doctors residing in that hospital, a specialist in diseases
of the five senses. Both doctors stated positively that they had perceived the odor of acetic acid
in the child's breathing, and having concluded that the boy had become acetic acid, applied the
cure to remove that substance from the child's body, and after making the first cures, took the
child to the provincial hospital and died there a few minutes after arriving.

I assure the Prosecutor that there was no need for an autopsy in order to reach a conclusion
concerning the cause of the child's death and that even if the autopsy showed that there was no
acetic acid in the child's intestines, been absorbed by the organism, or because his stomach had
been washed, he was sure that death was due to acetic acid poisoning, because he had smelled
that substance, whose odor is unmistakable, in the child's breathing and has seen the ravages of
the substance in the throat and in the mouth of the deceased. Both physicians, in a positive way,
without hesitation for a moment, assured the Court that the cause of death, as has been
repeated several times, is by acetic acid poisoning. And the court is satisfied that in such
circumstances,

"The Court has no doubt about the competence of these two doctors, especially when it comes
to the opinion of Dr. Ochoa, who is a specialist in the five senses and who has recognized the
throat and mouth of the child, burns caused by acetic acid.

"Apart from this, the mother of the deceased, who is a pharmacist, accustomed to smell and
distinguish substances, perceived the smell of acetic acid in the first moments when she lifted
her son from the bed. Emilio Esmeralda, is also a chemist and I assure that I have also smelled
the strong odor of Acetic Acid from the very first moment. Apart from these two people who can
be wrong, either because of their passion or because they are interested in their child, Mr. Julian
Gomeri, another chemist who lived in the same house, who assured the court that when he
entered the room where the child was in his mother's arms, he immediately smelled the
suffocating odor of acetic acid,so much so that immediately asked who had put acetic acid in the
bed of the child and immediately went to look for if there was said substance in the child's bed,
but found no bottle of acetic acid, or trace of this substance in the bed, but in the child's breath.

"That is why the Court repeats that it is proven beyond any reasonable doubt that the child
Emilio Esmeralda, jr., Died as a result of acetic acid poisoning, and it is untenable that he could
have had an indigestion for having ingested orange juice of California after having made milk,
and that the odor of acetic acid could be derived from the boy's vomit by mixing the orange juice
with milk.Three doctors and three chemists it is impossible to mistake the smell of orange juice
has returned acid when mixed with milk, with the strong odor of concentrated acetic acid.

"Having arrived at this conclusion that the death of the child Emilio Esmeralda, jr., Was due to
poisoning by acetic acid, the other question that the court has to solve is: who administered this
substance.

"From this point the evidence is all circumstantial only.

Flora Gonzalez arrived in La Carlota a few days later, that is to say on the day of the car, Mr.
Esmeralda, after breakfast and being absent then the accused for having gone to the market, I
told his lady what had happened in one of the days gone by, that is to say, to have surprised a
man in his own room and under his own bed, attending a meeting with the accused. Mrs. de
Esmeralda, given her education and being a woman at last, felt very offended and indignant at
the act of her maid and, very nervous, I await the return of the accused, and when she arrived,
Mrs. Esmeralda busied in the kitchen, began to insult her from head to toe, recriminating her for
her immoral act, and having allowed herself to be hidden in her own master's room, and after
she had scolded the accused, she returned to her room, and appearing little to the recrimination
she had just made to the accused, again Mrs. de Esmeralda returned to the kitchen to reprimand
her again, and as Mrs. de Esmeralda's nerves did not calm on these two occasions, as went back
to the kitchen, made new insults to the accused, in terms that when Mrs. de Esmeralda put her
son to sleep in bed, when she found something dirty the pillow cases, again went to the kitchen
and returned to admonish the accused recriminandola and saying that she only knew to have
lovers and did not know how to fulfill her duties as a maid. Barely two hours after these insults
occurred, the event that led to the death of the child Emilio Esmeralda, jr. and as Ms. de
Esmeralda's nerves did not calm on these two occasions, as she returned to the kitchen, she
made new insults to the accused, in terms that when Ms. de Esmeralda put her son to sleep in
the bed, when I found something dirty the covers of the pillow, again went to the kitchen and
again admonished the accused recriminandola and saying that only knew to have lovers and did
not know how to fulfill their duties as a maid. Barely two hours after these insults occurred, the
event that led to the death of the child Emilio Esmeralda, jr. and as Ms. de Esmeralda's nerves
did not calm on these two occasions, as she returned to the kitchen, she made new insults to the
accused, in terms that when Ms. de Esmeralda put her son to sleep in the bed, when I found
something dirty the covers of the pillow, again went to the kitchen and again admonished the
accused recriminandola and saying that only knew to have lovers and did not know how to fulfill
their duties as a maid. Barely two hours after these insults occurred, the event that led to the
death of the child Emilio Esmeralda, jr. when she found the pillow soiled, she went to the kitchen
again and again reproached the accused recriminating her and saying that she only knew how to
have lovers and did not know how to fulfill her duties as a maid. Barely two hours after these
insults occurred, the event that led to the death of the child Emilio Esmeralda, jr. when she
found the pillow soiled, she went to the kitchen again and again reproached the accused
recriminating her and saying that she only knew how to have lovers and did not know how to
fulfill her duties as a maid. Barely two hours after these insults occurred, the event that led to
the death of the child Emilio Esmeralda, jr.

It would be absurd the most remote assumption that these people were the perpetrators of
such poisoning. It could not be Elsa Esmeralda because she was, apart from her few years,
sleeping with her little brother in the same bed where the incident occurred. It could not be Lilia,
nor the maid Magdalena Soriano, because they were both in the toilet, according to the
evidence; besides that it could not fit the supposition that, or Magdalena Soriano, or Lilia had
mistakenly administered acetic acid to the sleeping child, inasmuch as the bottle that contained
it was in the kitchen, according to the accused herself, near the water cantaro where she she had
put, and the accused, according to herself, was all afternoon in the kitchen scrubbing dishes, so
that if Magdalena Soriano or Lilia had wanted to reach the bottle of acetic acid, the defendant
would have seen them. Julian Gomeri was asleep in his room; was a companion of Mr. Esmeralda
at work, close friend of the family and has had no displeasure with any member of it and there is
no reason to attribute that he has put in the mouth of the acetic acid child. Jose Colmenares was
in the factory of the Central, which is half a kilometer from the house occupied by Messrs. De
Esmeralda, occupied in his works as an employee of the Central. Catalino Ramos was absent
then in the locality, because it was in the town of Talisay. Eliminated these people, only remains
the defendant as possible author of the act of administering acetic acid to the child Emilio
Esmeralda, jr. an intimate friend of the family and has not had any displeasure with any member
of it and there is no reason to attribute that he has put in the mouth of the acetic acid child. Jose
Colmenares was in the factory of the Central, which is half a kilometer from the house occupied
by Messrs. De Esmeralda, occupied in his works as an employee of the Central. Catalino Ramos
was absent then in the locality, because it was in the town of Talisay. Eliminated these people,
only remains the defendant as possible author of the act of administering acetic acid to the child
Emilio Esmeralda, jr. an intimate friend of the family and has not had any displeasure with any
member of it and there is no reason to attribute that he has put in the mouth of the acetic acid
child. Jose Colmenares was in the factory of the Central, which is half a kilometer from the house
occupied by Messrs. De Esmeralda, occupied in his works as an employee of the Central.
Catalino Ramos was absent then in the locality, because it was in the town of Talisay. Eliminated
these people, only remains the defendant as possible author of the act of administering acetic
acid to the child Emilio Esmeralda, jr. occupied in his work as an employee of the Central.
Catalino Ramos was absent then in the locality, because it was in the town of Talisay. Eliminated
these people, only remains the defendant as possible author of the act of administering acetic
acid to the child Emilio Esmeralda, jr. occupied in his work as an employee of the Central.
Catalino Ramos was absent then in the locality, because it was in the town of Talisay. Eliminated
these people, only remains the defendant as possible author of the act of administering acetic
acid to the child Emilio Esmeralda, jr.

The accused has not been able to deny this statement of Julian Gomeri, nor could give any
explanation why at that precise moment she left the room to go to the kitchen. It is possible that
after the acetic acid had been placed in the child's mouth, the child could not scream
immediately, but only a few seconds later when he felt the effects of the acid, so that the
accused had time to leave the site and return to the cooking and being in the room, the boy gave
the first cry that made him open his eyes to Julian Gomeri. This fact is another circumstantial
evidence quite strong, in the opinion of the Court, against the defendant. When the child's
mother was curing him, he ordered the accused and Magdalena Soriano to boil water in the
kitchen, and while these two servants complied with the order, the accused, without any
plausible reason, put her hands under the nose of Magdalena Soriano and said: 'My hands are
smelling acetic acid because something was spilled there when I made vinegar this morning with
acetic acid.' This unsolicited explanation made by the accused seems to indicate nothing more
than some fear that was in case someone could smell acetic acid in their hands. Another
circumstantial evidence against the accused is the fact that in the house she was the only one
who had in his custody this Exhibit A bottle containing acetic acid. Magdalena Soriano did not
even know where this bottle was. When Mrs. de Esmeralda looked for this bottle, whose
memory reminded her of the acetic acid in her son's mouth, she was the one who took the
bottle from the kitchen and handed it to Ms. de Esmeralda, saying it , more or less, these words:
'Lady, here is this bottle; he has not left the kitchen. '

the only one who has an interest in denying the existence of a body of crime is almost always, or
almost without, the author of it. And this attitude of the accused to deny such an obvious thing
and on which the Court has no doubt corroborates the opinion of the Court, all circumstantial
evidence that have been presented by the prosecution.

he wished to use all his ability so that the effects of the damage were not so great. The accused's
attitude, therefore, is perfectly explicable and not incompatible with her guilt. Another attitude
of the defendant who seems to have enough weight is her attitude when she returned in the
afternoon of the day after the event to the police station when the Chief of Police told her to
come back that afternoon. And the lawyer of the accused has reason to emphasize this
circumstance. The accused has been arrested almost midnight the day of the event. She was
released at 11 o'clock the following day, in view of the fact that no arrest warrant was issued
against her; but the Chief of Police told her to return at 3 o'clock in the afternoon, and at 3
o'clock that afternoon the defendant returned to the municipal building. The defendant's lawyer
argues that a criminal conscience would not proceed as the accused did; she would have
escaped. The Court has carefully considered this aspect of the question; has meditated at length
on this act of the accused; but the conclusion of the court is that if the defendant returned that
afternoon to the municipal building, it was because the accused did not know that the child
Emilio Esmeralda, jr., had died. In addition, she should know that, being a woman, she could not
go anywhere without being reached by the corresponding authorities, and therefore it was
better for her to appear before the authorities, seeming to have a clear conscience and thus
preparing her future defense .

was the one who slept nearest to the door, immediately coming in from the kitchen, and was the
one who, by his tender age, could immediately feel the effects of acetic acid, so he could execute
his revenge more safely on his part. Causing harm to the child, who, being the only male in the
family, was the most beloved of Messrs. De Esmeralda, caused the most damage to Ms. de
Esmeralda. The court, of course, accepts the theory that women are much more charitable than
men and much weaker than common consent; but precisely because it is more charitable,
because it is weaker, when the woman becomes bad and wants to take revenge, her vengeance
seeks the weakest also and on this causes that revenge, and daily experience teaches us that the
weakest beings, are men or women, when they become bad, are worse enemies; and it is not at
all strange, therefore, that the accused, fearing to attack Mr. Esmeralda and Mrs. de Esmeralda,
because he had no assurance against the execution of his revenge, has chosen as victim a
defenseless creature of 9 months of age.

"For the foregoing, the Court finds that it was beyond any reasonable doubt that Emilio
Esmeralda, who was 9 months old, died on February 8, 1932, as a result of poisoning by
concentrated acetic acid, and that the accused , taking advantage of the time when their masters
were sleeping, administered a small amount of this substance to said child, thereby burning the
mouth and throat, as a result of which said child died.
"The accused Magdalena Caliso is therefore found guilty of the crime of murder, and considering
in the commission of the crime the concurrence of the aggravating circumstance of treachery,
because it is a defenseless being, and the circumstance of having been made act in the own
dwelling of the parents of the victim, whose circumstances are compensated by the attenuating
circumstances of lack of instruction and of having acted the defendant in the impulses of a
feeling that has produced rapture and obsession, condemns him to the penalty of reclusion in
perpetuity, to compensate the parents of the deceased in the sum of P1,000, with the accessory
of law, and to pay the costs of the trial.

We agree to the conclusions of fact reached by the trial court. As for the application of the law to
the facts of the case, we are inclined to the proposition advanced by the Attorney-General that
in the commission of the crime the aggravating circumstance of serious abuse of confidence was
present since the appellant was the domestic servant of the family and was sometimes the
deceased child's amah. The circumstance of the crime having been committed in the dwelling of
the offended party, considered by the lower court as another aggravating circumstance, should
be dis- regarded as both the victim and the appellant were living in the same house. (US vs.
Rodriguez, Phil 9, 136;. U S. vs.Destrito and De Ocampo, 23 Phil., 28.) Likewise, threachery can
not be considered to aggravate the penalty as it is inherent in the offense of murder by means of
poisoning (3 See, page 29). Similarly the finding of the trial that the appellant acted under an
impulse so powerful to have produced passion and obfuscation should be discarded because the
accused, in poisoning the child, was actuated more by a spirit of lawlessness and revenge than
by any sudden (US vs. Hernandez, 43 Phil., 104, 111) and because such a burst of passion was
not provoked by prior unjust or improper acts of the victim or of his parents . Taylor, 6 Phil., 162),
since Flora Gonzalez had the perfect right to reprimand the defendant for indecently converting
the family's bedroom into a rendezvous of herself and her lover.

The aggravating circumstance of the abuse of confidence being offset by the extenuating
circumstance of defendants lack of instruction considered by the lower court, the medium
degree of the prescribed penalty should, therefore, be imposed, which, in this case, is perpetual
reclusion .

The penalty imposed by the lower court upon the appellant being thus within the limits fixed by
law, the judgment appealed from is affirmed with costs. So ordered.

Street, Malcolm, Hull , and Imperial, JJ ., Concur.