THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MARCIANO PARAYNO CIANONG, AND JOSE PARAYNO, DEFENDANTS-APPELLANTS.

On appeal from the decision of the Court of Instance of Pangasinan in Criminal Case No. 21169), finding therein
accused father and son, Marciano Parayno
and Jose Parayno, guilty of the crime of murder and
sentencing them to life imprisonment, to indemnify the heirs of the Rodrigo
Fernandez, in the sum of P6, 000 and to pa the costs.

The record show that on September 1, 1956, at about 2:30 o’clock
in the afternoon, while Francisco Fernandez was busy cutting grasses on the
“pilapil” of their fishpond in Barrio Capataan; Municipality of San Carlos, Province of Pangasinan, his young nephews, Leonardo Fernandez nicknamed
Adong, and Federico Fernandez nicknamed Maning, both aged 13, frantically called out to him and
relayed the informa­tion that something had happened to his 9 year old son,
Rodrigo Fernandez nicknamed Opring.  Francisco Fernan­dez hurriedly went to the
place where the two boys were, and after they pointed to him a certain place in
the river where the body of his son had disappeared, he plunged into the river
and soon fished out of the water, the lifeless body of Rodrigo.  The father tried to re­vive the boy by
applying artificial respiration, but the process proved futile – Rodrigo
Fernandez was already dead.

The incident was reported to the Barrio Lieu­tenant of both
Barrios Capataan and Quitong,
for the river where the drowning took place was the common boundary between the
said barrios.  The police of San
Carlos also made the necessary investigation of the
incident and that same afternoon Marciano Parayno and his son, Jose Parayno,
were arrested in their house some 130 meters from the place of the
incident.  They were brought by the
police to the town (poblacion) of San
Carlos for investigation.

At about 9:30 in the
evening of that day, the Municipal Health Officer of San
Carlos autopsied the body of Rodrigo Fernandez.  In his examination
report (Exh. A), dated September 2, 1956, the said official gave the following
postmortem findings:

“(1) Marked
swelling with discoloration of right side of neck in the vicinity of the lower
part of the right ear;

(2) Face: Pale and
livid at lips;

(3) Finger and toe
tips bluish;

(4) Hands and feet with wrinkled or contracted skin with seve­ral
folds (cutis anserina).

“CONCLUSION: – Postmortem finding No. (1) showed
the deceased suffered physical injury probably caused by a hard and blunt
object; Postmortem findings No. (2) (3) (4) show that the deceased exhibited
signs of asphyxia by drowning.  This is
also suppor­ted by the history of the bloody froth coming from the nostrils,
after the deceased was recovered from the water, as told by his alleged
relatives.”

For the death of Rodrigo Fernandez, Merciano
Para-no and Jose Parayno were on September 3, 1956,
charged and prosecuted in the Court of First Instance of Pangasi­nan
under the following Information for Murder:

“That on or about the 1st day of September, 1956, in barrio Capa­taan, municipality of San Carlos, province of Pangasinan, Philippines, and within the jurisdiction of
this Honorable Court, the above-named ac­cused, conspiring, confederating and
helping each other, with ‘evident pre­meditation and taking advantage of
superior strength, armed with a piece of wood, and with intent to kill, did,
then and there, wilfully, unlawfully and feloniously
attack, assault and hit one RODRIGO FERNANDEZ, a nine year old boy, with a
piece of wood, and after the victim was rendered uncons­cious, rolled him down
the river, thereby causing upon the victim the following:

(1) Marked swelling
with discoloration of right side of neck in the vici­nity of the lower part of
the right ear;

(2) Face: pale’ and livid at lips;

(3) Finger and toe tips, bluish;

(4) Hands and feet
with wrinkled or contracted skin with several folds (cutis anserina).

causing the
death of the victim as a consequence.

“Contrary to Article 248 of the Revised Penal Code.”

Upon being arraigned, both Marciano Parayno and Jose Parayno pleaded
“not guilty” to the indictment. 
Thereafter, the prosecution commenced presenting evi­dence for the
People.

Substantially stated, the story told by the wit­nesses for the
prosecution was as follows:

Shortly after lunchtime on September
1, 1956, Federico Fernandez, aged 13, and his cousin Leonardo
Fernandez, who was about his age, too, set out from their houses to gather
“payar” fruits beside the river.  It was a
Saturday and they had no classes.  As
they passed by the house of their younger cousin, Rodrigo Fernandez who was
aged 9, they were joined by the let­ter who first asked the permission of his
father.  As Rodrigo’s father, Francisco
Fernandez, did not object, the three young boys went on their way.  They crossed a bamboo bridge over the river
and went westward along the banks.  They treked over the “pilapil”
of the fish­ponds bordering the river to a distance of about 100 meters from
the bridge where they stopped and climbed the “payer” tree which grew
on the “pilapil” of accused Marciano Parayno’s fishpond by
the northern bank of the river.  For a
while the three (3) young boys enjoyed gathering the ripe fruit of the “payar” tree, but shortly thereafter, they saw the
owner of the fishpond, Marciano Parayno,
and his son Jose coming.  The boys heard
the old man shout at them, “I will beat you all.  Do not get those ‘payar‘
fruits.” Accused Marciano Parayno
and his son were still some 30 to 40 meters from the “payer” tree
when the boys heard the old man’s voice, and as they approached, the young boys
hur­riedly came down the tree to escape. 
Federico Fernandez was first to reach the ground.  He was followed by Rod­rigo Fernandez; and
last to get down the tree was Leo­nardo Fernandez.  As soon as they were all down the “payar” tree, the young boys ran towards the west.  They did not make any attempt to pass by the
bamboo bridge up the river in the east anymore,
because they figured the old man Marciano Parayno and his son will encounter and overtake them
because that way was watery.  At a
distance of about 3 or 4 meters from the foot of the “payar”
tree, the elder boys Federico and Leonardo jumped into the river and swam
across.  In a matter of a few minutes,
they were on the other side of the river, which was about 4 to 5 meters
wide.  Upon reaching the dike of their
grandfather’s fishpond, on the opposite side of the river, Federico and
Leonardo look­ed back.  They saw their
smaller companion, Rodrigo Fernandez, still there at the opposite side of the
river for he did not know how to swim and could not cross.  At that precise time, Marciano
Parayno and his son Jose Parayno
had reached the place; and catching up with the little boy, Marciano
Parayno struck at Rodrigo Fer­nandez from behind with
a piece of wood, about the size of the wrist of the boy in diameter and two and
a half  (2-1/2) feet in length.  Rodrigo Fernandez was stand­ing on top of the
“pilapil” of the fishpond when accused Marciano Parayno struck at him
about half a meter from behind – striking at the little boy with a forward and
downward direction from the level of the old man’s neck.  Rodrigo fell on the earthen pilapil of the fishpond, about one and a half (1-1/2) feet
from the edge of the river.  The elder
boys then across the river, heard Jose Parayno told
his father, “Let us roll him, father, so that it will be concluded that he
drowned.” Accused Marciano Parayno
first laid aside the piece of wood with which he struck at the little boy and
then he and his son Jose rolled over the body of Rodrigo Fernandez into the
water of the river in one shove. 
Rodrigo’s body sank into the water and soon disappeared.

Seeing the fate of their younger companion at the hands of
accused Marciano Parayno
and his son Jose Parayno, Federico Fernandez and his
cousin Leonardo Fernandez cried out to Rodrigo’s father who was cutting grass
on the Southern pilapil of their own fishpond, some
60 to 70 meters from where the two bop; stood and informed him that Mama Cianong (accused Marciano Parayno) had struck at his son Rodrigo and rolled him into
the river.  Im­mediately upon hearing the
information relayed by his nephews, Francisco Fernandez rushed to the scene
where­upon the two boys Federico and Leonardo reported their story.  “What have you done to my son?“, Francisco Fer­nandez exclaimed addressing accused Marciano Parayno and his son Jose
Parayno, who were still on the opposite side of the
river some 15 meters from the place where Francis­co Fernandez and his nephews
were.  Marciano
Parayno and Jose Parayno,
however, ignored the protestation of Fran­cisco Fernandez and hurriedly left
toward their house, the old man Cianong still
carrying the piece of wood with which he had struck at the boy Rodrigo
Fernandez, for Cianong again had picked up the piece
of wood shortly after he and his son had rolled over the body of the fallen
Rodrigo into the river.

Apprised by the two boys of the place where his boy disappeared,
Mama Ikoy (Francisco Fernandez) lost no time in
trying to retrieve the body of his son from the water.  He plunged into the river and searched for
his son.  He failed in his first attempt;
but upon a second try, he fished the body of Rodrigo Fernandez near his, own fishtrap (sicop) built across the
width of the river, some 3-14/2 meters from the place where, according to
Francisco and Leonardo, the body of Rodrigo was rolled over into the water by
accused Marciano Parayno
and Jose Parayno. 
In that portion of the river where Rod­rigo disappeared, the water was
up to the mouth of Francisco Fernandez, but at the place of the fishtrap where he found the body of his son, the water was
only up to his breast.

Upon finding the boy, Francisco Fernandez car­ried the victim and
laid his body on the pilapil of the fishpond.  He tried to revive the boy by applying
artificial respiration, but it proved too late; the poor little boy had
died.  Blood oozed from his mouth and
nose.  A swollen portion of his neck,
just below his right ear, was clearly noticeable.

Unable to revive the boy, Francisco called his brother and his
father and told them to report the mat­ter to the authorities.  First to arrive, at the scene was the Barrio
Lieutenant of Barrio Quitong, north of the river,
followed by the Barrio Lieutenant of Barrio Capataan in
the opposite side.  Still later,
policemen from the poblacion of San
Carlos also arrived and con­ducted an investigation.

That same day, Francisco Fernandez and his two nephews, Federico
and Leonardo, were questioned by the Chief of Police of San Carlos.  Their individual statements were reduced to
writing which they later signed before the Justice of the Peace of San Carlos.

The Municipal Health Officer of San Carlos
also testified for the prosecution. 
Explaining his postmortem findings embodied in his examination report,
he declared that the swelling on the neck of the victim just below the right ear, could have been caused by a hard blunt instrument like
a piece of wood or bamboo applied on the injured portion with a strong force.  He testified that such an injury could have
produced unconsciousness of the victim which may last long.  He declared further that such injury must
have produced immediate uncons­ciousness on the part of the child which might
have lasted from several minutes to several hours; and that it could have produced
death.  He described the swelling on the
right side of the neck as very marked, four (4) inches long and three (3)
inches wide.  It was ellyptical
in shape, in the longer accesses – vertical. 
The doctor also said that at the time of the examination, the rela­tives
of the victim gave him he information that ‘the child
had been beaten.  He concluded his direct
testimony by saying that the other findings noted by him are signs that the
victim died of drowning.

On cross examination, the witness admitted that the injury, found
en the neck of the child below the right oar could have been accused by a
violent fall of the body of the victim against the branches of a tree or the
wooden stump in the river, if the fall is strong.  He positively declared that the eyes of the
child, at the time of the examination, were congested; the lips were
discolored; end the wrinkles and folds of the skin were proper indices of
drowning.

For the defense of Marciano: arayno and Jose Pa­rayno, certain
persons by the name of Francisco Fernan­dez (not the father of the victim) and Evaristo Caranto testified.  They declared that on the day of the
incident, they were present at the place of the incident.  They went to the place with the intention of
buying fish and shrimp, which they knew Francisco Fernandez, the father of the
victim, used to catch from his fish-trap in the river separating the barrios of
Quitong and Capataan.  Francisco Fernandez was cutting grass on the pilapil of his fishpond when they arrived; and he in­formed
them that he had no fish at the time, but they were told to wait as he would
soon gather the catch from the fishtrap as soon as he
was through with his work.  As it was
then raining, they decided to wait inside the hut of Francisco Fernandez in the
fishpond near the river.

From the place, they saw Federico, Leonardo and Rodrigo swinging
and playing on the branches of the “payer” trees across the
river.  The river was only about 4 to 5
meters wide, but because it was rainy sea­son, the water almost reached the top
of the pilapil of the adjoining fishponds and the
current of the water was swift.  Fearing
for the safety of the boys, they warned them of the dangers of the swift
current of the waters below, and advised the boys to come down the tree.  Twice they repeated the warning, which the
boys did not heed.  They then called the
attention of the father of Rodrigo who was cutting grass nearby, and the father
himself advised the boys to come down the tree. 
Still the boys continued playing on the branches of the
“payer” tree.  By and by, they
also heard a voice com­ing from the direction of Merciano
Parayno’s house tell­ing the children to get down the
tree.

When the young boys heard the voice coming from the direction of Marciano Parayno’s house, they
hurried­ly came down the “payar” tree.  They passed through the branch of the tree
about two (2) meters above the pilapil of the
fishpond by suspending themselves from the said branch and then releasing their
holds as soon as their feet were near the ground.  First to come down from the said branch was
Leonardo, followed by Federico.  When
Rodrigo’s turn came, however, he lost hold of the branch and fell on the pilapil, feat first, then fell or his right back side.  Leonardo and Federico came back for the boy
and held him by the sides to keep him in a standing position.  They sort of dragged him to the bank of the
river for Rodrigo seemed to be unconscious, his head dropping forward as they
walked.  Coming to the place of the fishtrap; Leonardo crossed the river by clinging fast to
the side of the said fishtrap.  Federico tried to follow, but as he was about
to get down the bank of the river, he slipped and fell into the water, pulling
down Rodrigo into the river with him. 
Federico lost hold of the hand of Rodrigo, who immediately sank and
disappeared.

According to witness Francisco Fernandez (not the father of the
victim) he began to call at the father of the boy (Francisco Fernandez) and
told him that his son had sunk and disappeared, and the latter rushed towards
the bank of the river.  Leonardo and
Federico were already on the other side of the river when Francisco Fernandez
came.  He inquired from the two boys what
hap­pened and Leonardo and Federico allegedly said: “When we heard the
angry voice of Lakay Marciano,
we were scared, so we rushed to get down from the tree.” Upon hearing the
said report, and after he recovered the body of his son from the water but
failed to revive him, Francisco Fernandez got mad.  Substantially, he said: “That old man is
a beast were it not for his shouts, my son would not
have drowned.  I will make him answer for
the death of my son.” He then took his bolo and placed it on his waist,
then crossed the river and proceeded to­wards-the house of Marciano
Parayno, leaving the life­less body of the boy on top
of the pilapil of the fish­pond.  Knowing then that Francisco Fernandez would
no longer have the time to attend to their needs regarding their desire to buy
fish, the defense witness, Francisco Fernandez and his companion Evaristo Caranto decided to go
home.

Asked under cross examination if they did any­thing when they saw
the children crossing the river, more specially when they allegedly saw the
youngest and smallest among them fell into the water, these wit­nesses
explained that they could not do anything, as they themselves were afraid to brave
the dangers of the swift current of the river. 
They explained, however, that as soon as the father fished the body of
his son from the water, they helped him in trying to revive the boy, al­though
their effort proved futile because, the boy was al­ready dead.

A former policeman of San Carlos,
Tomas Rosario, also declared that at the time of the incident, he was ordered
to make the necessary investigation of the drown­ing of Rodrigo Fernandez.  Together with Patrolman Felipe Posadas, he went to barrio Capatean
and questioned Francisco Fernandez, the-father of the victim, and, his two
nephews, Leonardo and Federico, who were together with the victim immediately
before be was drowned.  He said that he
inquired from both Leonardo and Federico how Rodrigo got drowned and this was
the story they told him then: “We were gathering some fruits of the
‘payer’ tree.  Then this old man Marciano shouted at us, his voice coming from his place.  So, we went down fast and this Rodrigo fell
and he held hip head.  Then, we went away
running: When we arrived at the other side on the earth dike, we looked behind,
us and Rodrigo was already missing, so that we told his father Francisco that
his son was drowned, and then.  Francisco
Fernandez said: “This Marciano shouting at the children, that is why my son was drowned.  So, it is his fault” He testified
further that Leonardo and Federico never made mention to him that Mardiano Parayno struck at Rodrigo,
nor did they ever tell him then that Jose Parayno
suggested to his father that they should roll the body of Rodrigo into the
river.  He ad­mitted, however, that he
took along Merciano Parayno
and Jose Parayno to the poblacion
of San Carlos that same afternoon because of the claim of Francisco Fernandez
that they wets the cause of the drowning of his son, although according to him,
he never told Merciano Paray­no
and Jose Parayno that the father of the child was
laying the blame on them.  He narrated
further that as soon as they reached town, he made a verbal report of his
findings to the Chief of Police, although he admit­ted that he did not venture
to tell the Chief of Police that he knew they were innocent, even after he
learned later that a case of murder had been filed against them. 

Accused Jose Parayno testified that he
and his father, Marciano Parayno
were at home roofing their house the whole day of September 1, 1956. 
He admitted that he heard shouts that afternoon that somebody was
drowned in the river, but he did not come down their, house because it was then
raining.  Indeed, he was astonished When suddenly Ikoy Fernandez and
his father Felimon came to their house and shouted:
“You are a beast, you will answer for the death of my child.” It was
only after some inquiry, that they were able to learn that Francisco Fernandez
would want to lay the blame upon them for the death of his child because the
children were frightened by certain voices coming from the direction of their
house which was about 150 meters from the “payar”
tree the children had climbed that afternoon. 
He admitted, however, that he saw the three boys atop the
“payer” tree, although he was not aware whether or not the tree they
climbed was the one on, their pilapil He declared
also that his father was in the house when the angry Francisco Fernandez and
his father came over to their place, but said that his father did not hear the
accusation made by Ikoy because he was deaf.

Asked if he knew of any reason why the two young boys would want
to testify falsely against them, accused Jose Parayno
declared that he was not aware of any rea­son. 
He recalled, however, that sometime in the year 1955, Francisco
Fernandez built his fishtrap very near the place
where he had his own built earlier.  He
demanded from Francisco Fernandez the removal of the same which Ikoy first refused. 
But later, he removed his fishtrap and
transferred it farther down the river to its present location.

For his part, Marciano Parayno testified that he never went to the place of the
“payer” tree that afternoon. 
He declared that his house was about 120 meters from the place where the
tree was, and it was not even visible from their house because there were
bamboo groves (bayog) between the two places.  He denied that Francisco Fernan­dez ever went
to his place that afternoon, although he said that his neighbors went:  to their house when they learned that a
policeman had gone there and asked them to come to the poblacion
of San Carlos for investigation in connection with the drowning of the son of
Francisco Fernandez.  Marciano
Parayno maintained that he never struck at the boy,
much less rolled his body into the water; for the truth of the matter was that
he was not even aware that the boy had drowned, which was the very reason why
he expressed surprise when he learned from the policeman who came to fetch them
from their-house that afternoon of September 1, 1956, that Francisco Fer­nandez
had laid the blame on him and his son for the death of Rodrigo.  He declared that he only came to know the
place where the boy drowned after his release, for he and his son Jose were
busy the whole day of September 1, 1956,
working on the roof of their house.

With the foregoing evidence, the trial court found accused Marciano Parayno and Jos Parayno guilty of mur­der for
the killing of Rodrigo Fernandez, and in its decision of May 3, 1965, sentenced them as follows:

“WHEREFORE, in view of the foregoing, the Court finds both
accused guilty beyond reasonable doubt: of the crime of MURDER charged in the
information and in view of the ab­sence of any mitigating or aggravat­ing
circumstances and pursuant to the provisions of Art. 248 of the Revised Penal
Code, both accused are hereby sentenced to life imprison­ment, to
indemnify the heirs of the deceased Rodrigo Fernandez in the sum of P6, 000.00
and to pay the costs.”

Both accused have appealed.

Appellants points out the fact that the injury behind the right
ear of the victim was found by the exami­ning physician to be vertical – from
the back of the right ear down to the middle part of the neck.  It is, therefore, contended that the injury
could not have been inflicted by, the taller, 61-year old Merciano
Parayno on the 9-year old boy, Rodrigo Fernandez,
taking into con­sideration the testimony of Leonardo Fernandez that Mama Cianong struck at the boy with the piece of wood from be­hind
“with a forward and downward motion from the level of his neck.” We
are not impressed with this argument. With the accused hitting the victim from
behind in a sideward and forward and downward motion, it is but na­tural that
the injury inflicted would be in a more or less vertical position.

CROSS EXAMINATION of witness LEONARDO FERNANDEZ by Arty. ROSARIO ?

“Q. – Will you
demonstrate how Cianong swung his arm upon striking Opring?

A. – This way, sir,
(witness swinging his right hand from behind at the level of the neck swinging
for­ward and downward in a striking motion

Q. – The arms of Cianong were extended when he struck the blow?

A. – This way, sir,
(witness giving a motion showing that the arms ex ended when the blow was
given. It started with a bending motion swinging sideward -forward in a
stretching down).

Q. – And you said
that the length of that cane was approximately 2­1/2 feet?

A. – Yes, sir, this length.”

We really do not see our way clear how
with such alleged striking motion a horizontal injury could have been in­flicted
upon the victim as appellants would want to sug­gest.  For even if we should consider the, statement
of the witness that Merciano Parayno
struck in a sideward­ downward motion and disregard his other statement that Cianong struck in a forward-downward motion, we do not find
it totally improbable that the injury described by the examining physician
could have been produced.

But appellants would insists that with the striking motion
described by the witness – what with the size of the wood allegedly used by the
accused- the blow should have caused a fracture in the head of the 9-year old
boy.  The suggestion is conjectural, plain
and simple, and should be disregarded. 
The mere fact that the blow did not produce any fracture in the head of
the victim does not conclusively show that the testimony of the witness was
improbable, for the resulting injury would surely de­pend upon the degree of
force applied.  In the light of positive
testimony that the accused struck at the victim, and in the absence of any
evidence showing the degree of force applied, nothing much should be made out
of the circumstance that the attack did not result in any frac­ture. 

It is suggested by the appellants that the injury on the head of
the victim could have been caused either by the fall of the boy from the
“payer” tree which rend­ered him unconscious and that is why the two
larger boys had to come back and drag him along, or by the fall of the body of
the victim upon any blunt object when he and Federico Fernandez fell on the
stiff bank of the river.  The suggestion
should also be rejected.  The defense wit­ness
testified that he saw the boy get down the tree by the same branch from which
the two elder boys got down; that he saw Rodrigo fall from the branch – his
feet touching the ground first – then on his right back side near the trunk of
the tree; that later the elder boys came back for Rodrigo and guided him to the
side of the river; and that as Federico and Rodrigo approached the bank of the
river hand in hand, Federico slipped and pulled the smaller boy down with him
into the water.  But even if we were to
assume for the moment that these were established facts, still we find the
evidence wanting to show that Rodrigo hit any hard or blunt object when he fell
from the branch of the tree or on the bank of the river.  On the contrary, the same witness for the defense
declared that the ground where Rodrigo alighted near the trunk of the tree was
soft and slippery, for it had been raining the past week.  And so with the bank of the river where the
children allegedly slipped and fell; the same could not have endangered the
life of the children, not only because there is no evidence that there was any
stump or hard object in the vicinity, but also for the reason that according to
the same defense witness the bank of the river was covered with water which
almost reached the top of the pilapil of the
adjoining fishpond.  Suffice it to say
then, that neither the fall from the branch of the tree nor the fall upon the
bank of the river could have produced the injury on the head of the victim, if
we are to consider also the testimony of the doctor, who conducted the
postmortem examination of the victim, that the nature of the injury he found on
the head of the boy could only be produced if the impact against the blunt
instrument is very strong.  Finally, the
mere possibilities speculated upon by herein appel­lants, i.
e., that the head of the victim might have bumped against a blunt object when
he fell, cannot stand against the positive testimony of the children that they
saw the accused.  Marciano Parayno
strike at the boy with a piece of wood.

Lastly, appellants charge that the lower court erred in imposing
the same penalty for both accused Marciano Parayno and Jose Parayno.  They disagree with the finding of the court
below that they are equally guilty of the crime charged.  In support of this view, it is pointed out
that it was only during the trial of the case that the witnesses for the
prosecution impli­cated accused Jose Parayno by
declaring that both ac­cused rolled the body of the deceased Rodrigo Fernandez
into the river upon suggestion of Jose to his father which the two boys claimed
to have heard after Marciano Parayno
struck at the victim with the piece of wood, a fact they never made mention of
their affidavits taken before the Chief of Police of San Carlos, Pangasinan, and in their testimonies before the Justice of
the Peace of the place during the first stage of the preli­minary
investigation.  Hence, they claim that
the impu­tation of the crime against Jose Parayno was
merely an afterthought of the father of the victim who harbored a grudge
against said accused due to a previous heated argument And conflict over the
placement of a “tabagan” or fishtrap in the same portion of the river.

We find the charge to be worthy of consideration.  It appears that before this case was
forwarded to the trial court for further proceedings, affidavits were executed
by the prosecution witnesses Francisco Fernan­dez, Federico Fernandez, and
Leonardo Fernandez, and then a preliminary investigation was conducted by the
Justice of the Peace of San Carlos, Pangasinan.  The said affidavits, together with the record
of the preli­minary investigation were offered as exhibits for the defense and
are now legally before the Court.  They
are admissible in evidence and may properly be considered for the purpose of
testing the credibility of said witnesses. 
For ready reference, the pertinent portions of the affidavits
aforementioned and the record of the pre­liminary investigation are hereunder
quoted, as follows:

Portion of the affidavit
of Francisco Fernandez:

“Q. – Will you
relate to us the inci­dent wherein your: son was in­volved?

A. – That on or
about 2:30 P.M. Sep­tember 1, 1956, while I was gathering grass
near our fishpond situated in the barrio of Capataan,
I heard Maning and Adong
boys about 12 or 13 of their age, shouting and calling for me wherein I have
heard that something had happened to my boy, Rodrigo. I at once left my work
and run to the place and upon arriving near them Adong
and Maning informed me that my boy Rodrigo Fernandez
has been hit result­ing to his falling into the water.  They told me that it was old man, Cianong who it my boy with a piece of wood.” (Page
11 of the Record) [Underscoring Supplied]

Portion of the affidavit
of Federico Fernandez:

“Q. – Will you
relate to us what was that incident you are referring to?

“A. – While we
were on top of the payer tree gathering its fruits we notice that old man Sianong and his son Jose are coming and uttered in Pangasinan dialect ‘PECPECQUEN TAKAYO LALASI ET’ Meaning in
English ‘I will hit you all idiots.’ So we hurriedly get down the tree and ran
away. Old man Sianong was then running after us and Ofring was the last to run. 
Because he does not know how to swim across the river, so old man Sianong was able to over­take him thereby we saw Sianong Ofring with a piece of
wood and the latter rolled clown the bank of the river to the water.” (Page 12 of the record.) [Underscoring supplied]

Portion of the affidavit
of Leonardo, Fernandez:

“Q. – Will you relate to us the incident you are referring to?

“A. – While I was
climbing the payar tree, with Maning
and Ofring we noticed that someone shouted and upon
looking we found out that it was Sianong owner of the
fishpond near the river.  He said in Pangasinan dialect ‘PECPECQUEN TAKAYO ET, AGKAY0 MANAALA NA
PAYAR’ Meaning in English, ‘I will hit you all, do not get there payar.  ‘Then we went
down the tree and run away and Sianong was running
after us.  Because Ofring
cannot swim so Sianong was able to overtake him.  I saw that he rolled down the bank of the
river to the water because Sianong hit him with a
piece of wood.” (Page 13 of the Record) [Underscoring supplied]

Portion of testimony of
Federico Fernandez during the Preliminary Investigation:

“Q. – Will you
relate to the Honorable court the incident you are refer­ring to?

“A. – While I
was gathering fruits of the payer tree with these Adong
and Of-ring, old man Sianong and his son, Jose coming
towards our place and uttered in a loud voice I will beat you, you idiots.  So we hurriedly got down the tree and ran
away.  Old man Sianong
with his son were then running after us and because Ofring
could not swim he was left behind, and was overtaken by old man Sianong thereby we saw old man Sianong
hit Ofring with the piece fell down.  Old man Sianong
with his son Jose rolled of ring down the bank of the river to the water.  (Page 6 of the Record) [Underscoring
supplied]

x        x         x         x         
x

COURT:

“Q. – Was that
person. Sianong stated by you able to overtake you?

A.         
– I and Leonardo Fernandez were
able to run, while Rodrigo Fernandez was over- -taken by Sianong
and Sianong hit Rod­rigo Fernandez.

Q. – What
happened with Rodrigo Fernandez when hit by Sianong?

A. – Rodrigo
Fernandez felled and: rolled down the bank of the river until, he submerged
into the water.” (Page 10 of the Record) Underscoring supplied]

Portion of the testimony
of Leonardo Fernandez during the preliminary investigation:

“Q. – Please
relate to this Honorable Court the unusual incident you are referring to?

A.     
– While I vas climbing the payer
tree I heard someone shouted and upon looking, it was Sianong
who owns the fishpond near the river. I heard him said: ‘PECQUEN TACAYO ET, AM
YO MANAALA NA PAYAR, meaning in English: I will beat you all, do not get the
-payer fruits.

Q. – What did you do upon
hearing this?

A. – Let once went down
the tree with my companions and ran away and swam across the river.  Because Ofring
could not swim he was left           
behind and overtaken by Sianong with his son
Jose.  I saw Sianong
hit Ofring with a piece of wood after which rolled
him down the bank of the river to the water.” (Page 7 of the Record
[Underscoring supplied]

Analyzing the import of the foregoing statements, it will be seen
that in the affidavits executed by Fran­cisco Fernandez, Federico Fernandez and
Leonardo Fernan­dez before the Chief of Police of San Carlos, Pangasinan, after the commission of the crime, said
witnesses were unanimous in their declarations that the deceased Rodrigo
Fernandez fell and rolled down the bank of the river be­cause accused Merciano Parayno struck him with
a piece of wood.  No mention was ever
made by them in that investi­gation by the said Chief of Police,
that accused Jose Parayno participated in the
act of striking and rolling the body of the victim down the bank of the
river.  Dur­ing the first stage of the
preliminary investigation conducted before the Justice of the Peace of San
Carlos on the following day, Leonardo Fernandez maintained his declaration in
his affidavit that accused Marciano Pa­rayno alone hit Rodrigo Fernandez with a piece of wood,
although he stated then that after beating the boy, Mer­ciano
Parayno rolled him down the bank of the river to the
water.  On this occasion, Federico
Fernandez appears to have made the first suggestion that accused Jose Pa­rayno also rolled the body of the victim into the water,
but it will also be seen that he seems to have qualified again his statement
later by telling the court that when Sianong (Marciano hit Rodrigo Fernandez with the piece of wood, the
latter “fell and rolled down the bank of the river until he submerged into
the water.  ” Such
state­ments, altogether, generate doubts in our mind as to the veracity of the
statements subsequently made in court dur­ing the trial by the same witnesses,
to the effect that they heard accused Jose Parayno
suggest to his father,, accused Marciano Parayno, “that they should roll the body of Rodrigo
Fernandez down the bank of the river to make   ‘
it appear that he had drowned.  ,”
and that they saw both accused actually roll or shove away the body of the vic­tim
into the water.  It is worthy to note
that the state­ments in the affidavits aforementioned were given imme­diately
after the occurrence of the beating and the drown­ing when all the three
affiants have had no time to con­trive – and we see no reason why they all
failed to mention in those statements the alleged rolling of the body of the
victim into the water by both accused, if the same were true; and the fact that
they only revealed the alleged participation of said accused during the trial,
gives a ring of truth to the suspicion of herein appellants that the imputation
was but an afterthought of the father of the victim designed to implicate
accused Jose Parayno in the crime committed by his
father by making it appear later that both accused intentionally rolled the
body of the victim into the water after the beating.  We are, therefore, more inclined to acquit
herein appellant Jose Parayno of the crime charged
upon reasonable doubt. 

“If the inculpatory facts and
circumstances are capable of two or more explanations, one of which is
consistent with the innocence of the accused of the crime charged and the other
consistent with their guilt, then the evidence does not fulfill the test of
moral certainty and is not sufficient to support a conviction.” (U.
S. vs. Maaño, 2
Phil. 718; People vs. Pacana, 47 Phil. 48; See also,
People vs. Bautista, 81 Phil. 78)

This should not be construed, however, as
a suggestion that the conclusion reached should necessarily result in the
acquittal also of accused Marciano Parayno.  The
evidence may not be clear and convincing that he rolled the body of the victim
into the river.  The boy could have
fallen into the water, and drowned accidentally as a result of the beating.  Nevertheless, be should answer for the
consequences o: his act.  We do not find
it necessary also to discuss, in this connection, the alleged unrebutted testimony of Patrolman Tomas Rosario of the San
Carlos Police Department, to the effect that after conducting an on-the-spot
investigation of the drowning incident in the afternoon of September 1, 1956,
he made a verbal report to the Chief of Police of San Carlos, Pangasinan, inform­ing him that the accused were not in any
way responsible for the death of the victim. 
The fact that he did not make any written report of the alleged
investigation he conducted; and his failure to call the attention of his
superior officer to his alleged verbal report on the in­nocence of the accused,
even after he came to learn later that the said Chief, of Police had
subsequently filed a complaint for murder against them by reason of the death
of Rodrigo Fernandez, make his story too unnatural to be believable. 

The crime committed, however, appears to be homi­cide – not
murder.  To be sure, the aggravating
circum­stance of evident premeditation cannot qualify the kill­ing in this case
to murder.  There is nothing in the re­cord
to suggest the idea that Marciano Parayno
had con­ceived of the thought to kill Rodrigo Fernandez and, had sufficient
time thereafter to reflect upon the conse­quences of his act as to allow his
conscience to overcome the resolutions of his will if he desires to harken to its warnings. 
In fact, it will be observed, that the intent to kill seems to be not
even apparent, Consider­ing the evidence that he had
merely threatened ‘the child­ren on top of the “payar”
tree with the words: “I will beat-you all, do not get there payar“, and chased the children when they got down the
tree.  True to his warn­ing, Marciano Parayno did beat one of
the children, Rodrigo Fernandez, with a piece of wood which produced the
“marked swelling and discoloration of the right side of the neck in the
vicinity of the lower part of the right ear”, when Marciano
Parayno caught up with the child; but the evidence is
not conclusive, whether or not that injury was or could have been fatal to-the
life of the boy, the indubitable evidence being that the victim, had died of
drowning.  In view of this observation,
and considering the conclusion earlier reached, that the evidence for the
prosecution tending to show that the accused intentionally rolled the body of
the victim into the river, is not free from doubt, the qualifying circumstance
of evident premeditation should be ruled out. 
Under the same observation and conclusion, We
also hold that the Parayano may under the peculiar
circumstances said to have taken advantage of superior strength in the com-
mission of the offense notwithstanding the fact that at the time thereof the
said accused was already 61 years of age, victim was only 9.

Homicide is punished by reclusion temporal.  In the absence of any aggravating or
mitigating circumstance the penalty imposed by law for the crime com­mitted
should be imposed in its medium period. 
Applying the law on indeterminate sentence, the maximum term of the
penalty should be within the range of re­clusion temporal medium, while the
minimum, should be within the range of prision
mayor.  Considering the peculiar
circumstances surrounding the drowning of the victim, as already adverted, to
above, however,’ and in the exercise’ of its discretion in fixing the minimum
terra of the sentence, the Court believes that the accused is entitled to the
maximum of the benefits allowed under the said law. 

WHEREFORE, appellant Jose Parayno
is acquitted and his immediate release is hereby ordered, with costs de oficio; the decision appealed from’ is modified as to
appellant Marciano Parayno
who is hereby sentenced to imprisonment of not lose than six (6) years and one
(1) day of prision mayor, as minimum,
to seventeen (17) years and four (4) Months of reclusion temporal,
as maximum, and as to whom, judgment of the lover court is affirmed in all
other respects, with costs. 

Concepcion, C.J., Reyes, JBL, Dizon, Makalintal, Zaldivar, Sanchez, Ruiz Castro and Fernando, JJ., concur.