This is an  appeal filed by  both  defendants against the judgment of conviction rendered in this cause by the Honorable Judge Dionisio Chanco.

Between 7 and 8 o'clock on the evening of January 8,1910, while Juan Edusor was walking along the main street in the town of Santa  Maria,  IIocos Sur, he  met Antonino Domingo and  Faustino Dolor, who were going in the opposite direction; they asked Edusor from whence he had come and the latter replied that he had come from the rice fields and continued upon his way, passing between the said two  men who, scarcely had Edusor passed a yard beyond them, assaulted him with  clubs,  with which they were provided, and struck him several heavy blows on the head; as a result he fainted and fell at full length face down  on the ground.   At the beginning of the assault Edusor asked his aggressors to pardon him, for he had  done them  no wrong, to which one of them replied that they should  be done with the matter at once and take his life.  The assault was not preceded by any trouble whatever, there had  been no provocation on the part  of the offended party, and the two  aggressors  were his  friends.  After the assault, the defendants, believing that their victim was dead, took him out of the town and into the rice fields of the sitio of Payas and left him in a ditch, where, in the early morning of the following day, the  injured man  regained  consciousness, although he was unable to return to his house on account of weakness.  Through information given by  Honorato Foronda, the justice of the peace of the pueblo repaired to the place indicated by Foronda and there found the wounded man at a short distance from the ditch where he had  been left; his face  was covered with blood and he bore fifteen wounds,  the majority of which were in the head and  face, besides two slight bruises, one on the head and the other on a finger  of the right hand.  These wounds were cured  by medical  attendance  in fifty-three  days at  a cost of  P35, during which time the patient was unable to work, and as a result of the blows received, he lost three teeth.

For the foregoing reasons, the provincial fiscal filed  an information in the Court of First Instance, on the 4th of the following month of March,  charging  the accused with the crime of frustrated murder,  and, this cause having been instituted, the court, in view  of the evidence adduced, rendered judgment, on April 13, 1910, sentencing the defendants  each to the penalty of one year eight months and one day of prision  correctional, to the accessory penalties, to pay an indemnity of P35 to the offended party, and, in case of insolvency, to the corresponding subsidiary imprisonment, and to pay the costs; and on April 22, the day  following, the court overruled the motion for a new trial made by the defendants' counsel, who appealed from the said judgment.

From the facts hereinbefore stated,  duly proved  in the present cause, it is concluded that the  crime of frustrated murder was committed against the person of Juan Edusor on the night of January 8, 1910, a crime provided for and punished by article 403, in connection  with article 3, paragraph 2, and article 65 of the Penal Code. The punishable act is qualified by the specific circumstance of treachery, one determining the crime of murder,  inasmuch as the offended party was assaulted while his back was turned toward his two aggressors, for, as found from the medical examination of the contusions, the first two  blows, struck with  clubs, were  inflicted upon the victim at the back of the neck; and, further, in the commission of the frustrated crime the said aggressors employed means, ways and modes tending directly and especially to insure the consummation of the crime without risk to their  persons such as could have arisen from  any defense which  the  assaulted party might have made, and  in the execution of the deed they performed all the acts calculated to produce death;  and,  although the victim did not die, it was due  to causes independent  of the will of those who assaulted him; the large number of serious wounds,  inflicted by repeated  blows administered by the defendants,  the majority  of them on  the head and  face, while he was stretched out on the  ground and unconscious, the insistency  with which they  illtreated him,  striking him on a part of the body where  contusions usually cause fatal results, and the fact that, after such cruel treatment and believing that the injured man was dead, they picked him up from the spot where he had  fallen, took him out of the town into the rice fields and left him in a ditch, as if he were a corpse - all these acts reveal marked perversity and evidence their criminal intention to deprive him of his life; in fact they treacherously assaulted him at a moment when he had his back turned to them  and when he  had no reason to believe, from the conversation the defendants were holding between themselves, that he was to be assaulted in such a manner.

The  defendants  pleaded  not  guilty, denied the charge, and alleged the following: Faustino Dolor said that  during the entire day of the crime, January 8, 1910, and since the 5th  of  the  same month,  he was sick with fever and did not  leave the house.   Antonino Domingo declared that he was in  the barrio of Danyaquin of the pueblo of Santiago, distant about 5 kilometers  from that  of Santa Maria, engaged  in superintending the grinding of his  sugar cane, from the morning of the said day until  that of the  following  day, Sunday, without leaving  the barrio  during that time.  This latter defendant testified,  moreover, that Juan Edusor, on being  examined by the justice of the peace in his presence, swore that he did not know who his aggressors were, although he afterwards  designated this defendant  by name as being one of them, which was not true. But notwithstanding these allegations  of the  defendants and  the testimony of their  supporting witnesses, sufficient evidence was presented at the trial to  produce in the mind the full conviction, beyond all  doubt, of the  defendants' guilt as the principals, by direct participation, of the wounds and  contusions, some of  them serious,  inflicted upon the offended party on the night aforementioned.

Juan Edusor, the victim, averred in a positive manner that, a few moments prior to the assault and while he was in the place where he was assaulted  by the  defendants, the latter were engaged in conversation, and that, as they all knew each other  very well and were friends, he recognized his  assailants perfectly  in  spite of the darkness; the moon was not  shining,  but  the starlight  enabled him to  see and recognize them,  and he also recognized  their voices.   Two residents of the locality, Eulogio Foronda and German  Foronda, testified to their having seen the defendnts going along the main highway of the town of Santa Maria in the  direction  of the town at about 9 o'clock on the evening of the crime, while the witnesses  were going in an opposite direction to fish, and that the following words passed between the defendants: "nos  vamos ya, bien que ya  esta guardado"  and  they then recognized him well, for they were old acquaintances  of his; that on the following day when they learned of  what  had occurred they suspected from those words that  the defendants had  done something; later, their suspicions  were confirmed  by the statement made by the  wounded man  after he was picked up from  the rice field, to the  effect that Antonino Domingo was one of those  who  on the evening in  question struck him the  blows with the club.  Owing to the seriousness of his wounds, he did not at the time remember the name of the other assailant.

It is true that the only witness  who directly  designated the defendants as the perpetrators  of the crime was the offended  party himself; yet since  no other witness was present at the commission of the crime than the aggrieved party himself, and his testimony given at the trial appears to be corroborated by other incriminating evidence, such testimony by the  aggrieved party may serve as grounds for a conviction, if it  is supported  at  trial by other circumstantial evidence.  In this case two other witnesses, Claudio Escobar and Eugenio Espiritu, confirming  the statements made by the victim and  by the said two resident fishermen,  testified, Escobar, to his having seen Faustino Dolor leave his house, cross the street and bathe himself in a well near his  (Escobar's) house, on the said 8th day of January, and therefore he could not have been dangerously sick  with fever;  and  Espiritu,  to his having  seen the defendants seated  by the roadside between 7  and 8 o'clock that evening armed  with clubs and conversing together.  The testimony of these witnesses is a refutation of the allegations made by the defendants that one of them was sick in  his house, and the other absent in a barrio 5 kilometers away on  the evening of  January 8, 1910,  and offsets in a positive manner  the testimony of the witnesses called by the defendants.

It can not be held that t"he perpetration of the said crime was attended by any extenuating or aggravating circumstance, for the reason that the circumstances of abuse of superiority and of nocturnity, taken advantage of in the execution of the deed, are included  in the qualifying  circumstance of alevosia and, in the present case, are involved in the consummation of the crime of frustrated murder; wherefore the corresponding penalty should be imposed upon the defendants in the medium degree.

With respect to  the multiplicity of errors attributed to the trial judge by the defendant's counsel, it must be kept in mind that the question addressed to the offended party, Juan  Edusor - who was still suffering from the effects of the atrocious illtreatment inflicted by the defendants,  and well aware that the courts were  investigating his case - as to whether anything had occurred between him and the defendants on  the evening of January 8, can in  no manner be  considered  a  leading one, like others bearing on  the investigation of the crime, its circumstances, and its perpetrators, unless we establish the theory that, in order not to prejudice criminals it shall neither be permitted to proceed with the investigation of the crime, nor to address any question whatever to the witnesses for the prosecution conducive to the result sought by the proceedings.

The law  prohibits all questions which suggest to the witness the answer intended to be obtained by the questioner; but not those the purpose of  which is to discover the truth of the facts that occurred, and it authorizes the judge to rely upon  his discretion and good judgment in  deciding upon the relevancy and propriety of  the questions which may be put to the witness, to the end that, in passing judgment, he may be enabled to administer strict justice, with rectitude and impartiality.

With respect to the denial of the motion for a new hearing, the grounds on which this decision rest justify  the ruling of the judge and show that the sole  testimony of Juan Directo, new evidence subsequently discovered, according to the defense of the accused, even  were it admitted in the terms expressed  by the affidavit which accompanied the motion, would not have affected the final  result of  the cause.  It might be true that, at half past 5 o'clock of  the afternoon of the said day, January 8, Juan  Edusor fought with  Martin Imperial and Faustino Agoyaoy with clubs; but, besides its not  being shown what was the result of  the fight, it is  further  proven that before  8 o'clock on that evening  the  said Edusor  was seriously  illtreated  by  the defendants who left him unconscious and abandoned in a ditch  in a field - facts entirely different from those set forth in the said affidavit, and  therefore the testimony of  the aforementioned  Juan Directo, though it  may  prove a new fact, could not prove that  the charge under which  the  defendants are held to be liable was false.

For the foregoing reasons, it is  proper, in  our opinion, to reverse the judgment appealed from, and we hereby sentence  Antonio Domingo and Faustino Dolor,  as the perpetrators of frustrated murder, each to the penalty of twelve years and one day of cadena temporal, to the accessory penalties provided by article  56  of the Penal Code, to indemnify the offended party in the amount of P35, without subsidiary imprisonment in view of the nature of the principal penalty, and each to  pay one-half  of the costs of both instances. So ordered.

Arellano, C. J,, Mapa,  Carson, Moreland, and Trent, JJ., concur".