THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. RICARDO ATENCIO, SILVESTRE COLISAO, AND DOMINGO ATENCIO, DEFENDANTS.

Automatic review of the decision of the Court of First Instance of
Samar (in Crim. Case No.
733), finding accused Ricardo Atencio, Domingo Atencio and Silvestre Colisao
guilty of the crime of robbery with triple homicide, and sentencing all of them
to suffer the supreme penalty of death, to pay the value of the stolen articles,
and to indemnify the heirs of the victims, Gerardo Rapsing,
Sebastian Rapsing and Daniel Rosita.

On December 29, 1961, Ricardo Atencio,
Domingo Atencio and Silvestre Colisao,
together with Bonifacio Gremio
alias Boning, were charged in the Court of First Instance of Samar with the crime of “Robbery in Band with Triple
Homicide”, allegedly committed as follows:

“That on or about the 7th day of December,
1961, in the evening, in Sitio Pocdol,
Bo. Dancalan, Bobon,
Samar, Philippines, and within the jurisdic­tion of
this Honorable Court, the above-named accused, armed with deadly weapons,
conspiring, confederating together and mutually helping one another, with
intent to gain and by means of violence against and intimidation of persons and
force upon things, did, then and there wil­fully,
unlawfully and feloniously enter the house of one Gerardo Rapsing,
and once inside, by means of force, opened the wardrobe and trunk and took,
stole, and carry away with them the following to wit:

and in pursuance of their conspiracy, with
evident premeditation and treachery, and with the decided purpose to kill, did,
then and there wilfully, unlawfully and feloniously
attack, assault, stab and wound Gerardo Rapsing, one
Sebastian, a house boy and Daniel Rosita also a house helper, while the above-
mentioned victims were asleep, hitting and mortally wounding each of the three
aforementioned victims at various parts of their bodies, which mortal wounds
caused the instantaneous death of Gerardo Rapsing,
Sebastian and Daniel Rosita respectively.

“Contrary to law, with the aggravating
circumstances that the crime was committed in the dwelling of the victims and
nighttime.”

On November 29, 1962,
and upon motion of the Assistant Provincial Fiscal, the Court ordered accused Bonifacio Gremio, alias Boning,
discharged from the information to be utilized as the lone witness.  On the same day, the three remaining accused
were arraigned and entered pleas of not guilty.

As established by the evidence for the prosecution, the facts of
the case are as follows:

At about 5 o’clock in
the afternoon of December 7, 1961,
Ricardo Atencio, in the company of Domingo Atencio and Silvestre Colisao,
went to the house of Bonifacio Gremio
in Barrio Dancalan, municipality
of Bobon,
Samar province, inviting the
latter to have “good time” with them that evening.  Bonifacio accepted
the in­vitation.  The three (Ricardo,
Domingo and Silvestre) returned to the house of Bonifacio
at about 7 o’clock in the evening to
pick him up.  When Bonifacio
asked Ricardo where they were going, the latter answered that they would talk
about it on the way.  The group took a
trail toward Barrio Dancalan; Bonifacio
walking ahead, followed by Ricardo who had a bolo in his hand, while Domingo
and Silvestre were following Ricardo, with their respective sheathed bolos at
their waists.  When they reached the
vicinity of the house of Gerardo Rapsing, Ricardo
informed Bonifacio that they were going to rob Rapsing, because the latter had money.  Bonifacio objected
to the plan, reasoning that Rapsing is a relative of
his father.  But Ricardo warned him that
he better go with the group, and if he (Bonifacio)
would inform on them, he would be in a bad fix. 
– Bonifacio had to go with the trio.

Bonifacio was instructed by Ricardo to
stay on the ground while the other three (Ricardo, Domingo and Silvestre) would
go up the house of Gerardo Rapsing.  Then, after they had gone around the house
three times and became assured that the inmates therein were asleep, they
entered through the kitchen door after removing its bamboo bolt.  Thereafter, Bonifacio
heard the voices of two grown-ups and a child from the house, followed by
hacking or chop­ping sounds.  Afraid, he
left the place and went home.

At about 7 o’clock of the following morning, Constancia
Valido, wife of Gerardo Rapsing,
returning from the house of a married daughter where she had slept the night
before, found her husband, his nephew Sebastian and their helper Daniel Rosita,
all dead in their house, and their personal belongings strewn about the
floor.  She ran to the house of her
brother and informed the latter of her discovery; her nephew called for the
doctor and the Chief of Police.

The autopsy of the bodies of the victims, conducted on the same
morning by the Municipal Health Officer, revealed that the deceased sustained
the following injuries:

Gerardo Rapsing, 75 years
old –

“POSTMORTEM FINDINGS

“Fairly developed, fairly nourished cadaver with a height of 5
ft. 2 inches.  Cadaver
lying on his right side with a green woolen blanket covering his whole body.  Rigor mortis present all over the body.  Eyes open with dilated pupil.  Blood amount­ing to 1,000 cc found on the mat
where cadaver was lying.  An examination
of the cadaver an incised wound measuring 2 inches was found at the internal
part of left forearm.  Edge
of wound are (sic) regular and well defined.  Another incised wound extending from the
pre-auricular part of the left ear to the left side of the mouth was
found.  Wound has clean cut edges and
regular.  A chopping wound was found
extending from left post-auricular part of left ear to the left side of
mouth.  Such wound involves the left side
of maxilla and left side of upper jaw and important branches of the caroted artery and nerves.

“Cause of death – HEMORRHAGE DUE TO MULTIPLE INCISED WOUNDS
AND CHOPPING WOUND.” (Exh.
A).

Daniel Rosita, 45 years old –

“POSTMORTEM FINDINGS

“Fairly developed, fairly nourished cadaver with rigor mortis
found all over the body – abdomen distended. 
Blood found scattered on the floor where he was lying.  An examination of cadaver an incised wound
measuring 1 inch was found at the middle part of the forehead.  A chopping wound was found extending from the
right upper scapular to the right arm leaving only a part of the skin of the
right mid axillary region intact and that the right
arm almost separates from the body.  Even
the bone was cut.  Important vessels and
structures in the arm was (sic) cut 2 chopping wounds was (sic) found also –
extending from the left scapular region to the left arm cutting also the head
of radial bones and other structures and important vessels were cut.  It almost separate (sic) from the body if not
for the small part of the skin at the left mid axillary
region.

“Cause of death – HEMORRHAGE DUE TO MULTIPLE CHOPPING WOUNDS
AT LEFT RIGHT ARMS.” (Exh.
B)

Sebastian Rapsing, 15
years old –

“Fairly developed, fairly nourished cadaver with rigor mortis found
all over the body.  Blood scattered
around the body and on the floor where he was lying.  On close examination of the cadaver a chopping
wound was found at the back of the neck leaving only the larynx and skin at the
front of neck intact.  Important vessels
and parts of the neck was (sic) cut.

“Cause of death – HEMORRHAGE DUE TO CHOPPING WOUND AT
NECK.” (Exh. C)

Based on further investigation, the widow
found that some personal effects, estimated to be worth P409.40, were missing.

On December 13, 1961, Ricardo Atencio,
who was investigated by the police authorities of Bobon
as a suspect, subscribed to a statement before the Justice of the Peace, Judge Valila, confessing to the commission of the crime, together
with his younger brother Domingo Atencio, Silvestre Colisao and Bonifacio Gremio (Exhs. K, K-1, K-2 and
K-3), although blaming the crime on Gremio and Colisao.  On December 15, 1961, it appears that
he gave another statement to S/Sgt. Juanito Yrigan, investigator of the 96th PC Company, and subscribed
to before acting Municipal Mayor Protacio Poso of Bobon, wherein he claimed
to have committed the crime alone and explaining that he had previously blamed
his companions out of personal animosity. 
On the same day, December 15, Ricardo Atencio
reenacted the crime in the house of Gerardo Rapsing,
in the presence of Sgt. Yrigan, the Chief of Police
of Bobon, Police investigator Paredes
and Cpl. Lariego. 
Pictures of this reenact­ment^[1]
were taken by photographer Antonio Reyes. 
The investigators also went to the land being farmed by Ricardo Atencio and on the bambloo clump
where the latter said he had left the stolen articles, the police authorities
found an army belt inscribed with the name “Jesie“,^[2]
said to be used by the deceased Gerardo Rapsing; a
fork;^[3]
an empty broken, wooden piggy bank,^[4]
and two 10-centavo coins.^[5]
Domingo Atencio, Bonifacio Gremio and Silvestre Colisao were
never­theless arrested.^[6]
When Domingo was taken in by the police, he was wearing a sky-blue T-shirt,
“Highland” brand, which Constancia
Valido Vda. de Rapsing identified as one of
the articles taken by the robbers from their house.

The defense of Ricardo Atencio, who
entered a plea of not guilty, was alibi. 
He took the witness stand and testified that he knows the deceased
Gerardo Rapsing, Sebastian Rapsing
and Daniel Rosita, having been once entrusted to take care of two carabaos belonging to the spouses Rapsing;
that on December 5, 1961; with his wife and children, he left their house in sitio Burabod,^[7]
because he was due to appear as accused at the hearing of Criminal Case No.
3176 of the Municipal Court of Bobon, Samar (for Threat to Kill), in the afternoon of December 7,
1961; that in the morning of December 7, he was in Catarman,
Samar, conferring with his lawyer; that in the
afternoon, as the scheduled trial did not take place because the judge failed
to arrive, he and his family had themselves inoculated against “El Tor“; that the following morning, December 8, 1961, he
and his family took the bus for the barrio of Dancalan,
and it was only when he arrived thereat that he learned of the death of Gerardo
Rapsing, Sebastian Rapsing
and Daniel Rosita.  He further testified
that on December 10, 1961, he and his family returned to Bobon
to attend the last day of the “novenario”
for his step-father; that on December 11, he slept in the house of his
mother-in-law in Agrupacion; that on December 12, he
was called to the municipal building (of Bobon) where
he was investigated by PC investigator, Sgt. Juanito Yrigan, in the presence of one Primitivo
Rapsing, a soldier-son of the deceased Gerardo Rapsing, his answers to the questions asked being taken
down by ball-pen; that he was sent home, with instruction to return; when be
did so on December 12, 1961, Primitivo Rapsing read to him the supposed answers he gave during the
investigation, in the presence of Sgt. Yrigan and
Judge Francisco Valila; that he was not able to read
the statement; that after he was asked to sign the pages of said statement, he
was allowed to go home; that having heard rumor that what he signed was a
confession, he went back to Judge Valila who told him
that there was nothing to what he signed; that on his way home, he was
arrested.

This accused disputed his extrajudicial admissions, charg­ing
that they were given involuntarily; that he signed them after he was maltreated
by Primitivo Rapsing in the
PC barracks on December 14, 1961;
that the pictures taken by witness Antonio Reyes during the reenactment were
under the direction of Sgt. Yrigan, who instructed
him how to pose for them (the pictures).

The accused Domingo Atencio (who did
not testify during the trial) tried to establish through Marcelino
Mendador, a neighbor, that
he (Domingo) was in his house from 5 o’clock
in the afternoon of the 7th December until about 6
o’clock of the following morning, preparing and drying his copra.

On the other hand, accused Silvestre Colisao
testified that in the afternoon of December
7, 1961, he collected unpaid accounts from certain people; that at
about 5 o’clock in the afternoon, he
fetched water and gathered firewood; that he went to bed at about 9 o’clock. 
Witness Casiano Celespara
supported this testimony by declaring that he passed the night in the house of
Silvestre Colisao on December 7, 1961; that he went to bed at about 9 o’clock in the evening, Silvestre and his wife
were at the time in the house.

On rebuttal, the prosecution presented, among others, Judge
Francisco Valila, the Justice of the Peace, who
testified that the statement, Exhibits K to K-3, were read and translated in
the dialect to accused Ricardo Atencio; that before Atencio signed the statement, witness Valila
asked him if he (Ricardo Atencio) understood its
contents, to which the latter answered in the affirmative.  The defense likewise presented sur-rebuttal evidence.

On January 15, 1964, the trial Court rendered judgment against
the three accused, finding them guilty as charged, of robbery with triple
homicide attended by five aggravating circumstances – evident premeditation,
treachery, dwelling, nocturnity, and the crime having
been committed by a band – without any mitigating circumstance and,
accordingly, sentenced all of them (Ricardo Atencio,
Domingo Atencio and Silvestre Colisao),
to death, and to pay, jointly and severally, the value of the taken goods in
the sum of P409.40, to indemnify the heirs of Gerardo Rapsing
in the sum of P6,000.00, the heirs of Sebastian Rapsing
in the sum of P6,000.00, and the heirs of Daniel Rosita in the sum of
P6,000.00, and to pay 3/4 of the costs.

The case is now on automatic review by this Court.

The counsels de officio for Ricardo Atencio, and for Domingo Atencio
and Silvestre Colisao, contest the decision under
considera­tion, alleging that the trial Court committed error (1) in finding
that there was conspiracy among the three accused to commit the crime; (2) in
finding accused Domingo Atencio and Silvestre Colisao guilty of robbery with triple homicide; (3) in
finding that the commission of the offense was attended by five aggravating circumstances;
and (4) in imposing on all of the three accused the maximum penalty of death.

The role and participation of Ricardo Atencio
in the commission of this heinous crime – the slaying of three unarmed and
sleeping persons, one of them a 75-year old man and another a 15-year old boy,
to facilitate the taking of the victims’ odd personal belongings – has been
clearly established.  Not only did he
make two extrajudicial confessions of his guilt before the Mayor (Exhs. D to D-3), and before Fiscal Daling (Exh. N); he was
positively named by witness Bonifacio Gremio as the one who disclosed the plan to rob Gerardo Rapsing on the night of December 7, 1961, and in fact he
was one of the three persons who went up the house where the bloody bodies of
the victims were found the following morning.

It is true that during the trial, this accused repudiated his
previous extrajudicial admission, claiming that he signed the statements,
Exhibits D to D-3, without knowing its contents and in order to end the
maltreatment he was getting from the PC investigator and the soldier-son of the
deceased Gerardo Rapsing.  This allega­tion that the confession was
extracted from him by force was not only uncorroborated, but was even denied by
the Chief of Police of Bobon who witnessed the
signing and the Vice-Mayor before whom the statement was subscribed, and who
declared that it was read to and understood by Ricardo Atencio,
and that it was signed freely and voluntarily. 
We also note that the statement contained details which were either
admitted by the accused as true during the trial, or corroborated by other
witnesses – such as the facts that Ricardo had a previous quarrel with
Silvestre Colisao; that he took charge of two carabaos of the spouses Rapsing;
that he knew that Gerardo Rapsing bad sold copra;
that Ricardo lost some money in a card game, and that the articles taken from
the house of Rapsing were placed atop a “patong” or bamboo clump near Ricardo’s house where
they were found, indicating that the information was furnished by Ricardo Atencio himself.  The
trial Judge also made the observation that from the demeanor of this accused
while testifying, he (the Judge) was convinced that said accused was
unreliable.

Furthermore, it may be pointed out that this accused stoutly
maintained during the trial that at the time when the robbery and killings were
supposed to be taking place, he was in the house of his mother-in-law in
another sitio. 
And yet, in the statement he gave to the investigator on December 13, 1961, prior to his
arrest, and subscribed to before the Justice of the Peace of Bobon (Exhs. K to K-2), Atencio admitted being with the group of Domingo Atencio, Silvestre Colisao and Bonifacio Gremio that same night,
committing the robbery and killing in the house of Gerardo Rapsing
in sitio Pocdol.  Needless to state, the Justice of the Peace
of Bobon testified in court that the statement,
Exhibits K to K-2, was given by Ricardo Atencio
voluntarily and under no compulsion.  He
also admitted the homicide and robbery in his testimony before Fiscal Daling (Exh. N).  There is thus no doubt in our mind that
Ricardo Atencio took part in the robbery and killing
of the three victims in this case, and the trial Court , therefore, correctly
ruled that his guilt and culpability were established beyond reasonable doubt.

Question has been raised against the lower Court’s finding that
Domingo Atencio and Silvestre Colisao
were co-conspirators of Ricardo Atencio, it being
asserted that there was no adequate proof of the existence of the conspiracy,
as provided in Section 27 of the Revised Rule 130 of the Rules of Court.

The contention is without merit. 
The testimony of discharged witness Bonifacio Gremio, placing Domingo
Atencio and Silvestre Colisao
in the company of Ricardo Atencio when the plan to
rob Gerardo Rapsing was revealed to Bonifacio, indicating that they were in the plot, and were
with Ricardo in entering the house, is admissible evidence against Domingo and
Silvestre.  In one case,^[8]
where the same issue of the admissibility of the lone testimony of a
co-conspirator to prove conspiracy, was assigned, this Court said:

“The appellants contend further that in order that the
testimony of a conspirator may be admissible in evidence against his
co-conspirator, it must appear, and be shown by evidence other than the
admission itself that the conspiracy actually existed and that the person who
is to be bound by the admission was a privy to the conspiracy.  And as there is nothing but the lone
testimony of prosecution witness Anastacio Reyes, a
co-conspirator, the trial court erred in finding that the conspiracy has been
established and in convicting the appellants based upon the lone testimony of
their co-conspirator.  The contention
does not merit serious consideration, because the rule that ‘The act or
declaration of a relating to the conspiracy and during its existence, may be
given in evidence against the co-conspirator after the conspiracy is shown by
evidence other than such act or declaration,’ applies only to extrajudicial
acts or declaration, but not to testimony given on the stand at the trial,
where the defendant has the opportunity to cross-examine the declarant.”

When Bonifacio Gremio,
in this case, took the witness stand and testified on the participations of
Domingo Atencio and Silvestre Colisao
in the crime, he was not making an admission or declaration as a
co-conspirator; he was an eye-witness identifying them in connection with the
incident, and whose testimony could have been shaken by cross-examination or
disproved by other evidence.  As it
happened here, Bonifacio’s testimony pointing to the
existence of conspiracy among Ricardo Atencio,
Domingo Atencio and Silvestre Colisao,
remained and withstood cross-examinations by the separate counsel for the
accused.

The defense attacks the credibility of witness Gremio on the basis of its coming from a polluted source,
and the improbability that this appellant should have been left behind by his
companions despite having expressed unwillingness to participate in the rob­bery.  As to the latter circumstance, it must be
remembered that Gremio had been threatened to keep
silent, and the effectiveness of the menace was such that he did not reveal
what he knew to the prosecution until after the information was filed (see
Record, p. 2; t.s.n., Abata,
pp. 4, 8, 54, 57).  His being a
co-conspirator demands, of course, that his testimony be regarded with
suspicion; yet, we can not close our eyes to the convincing detail that Gremio’s version that appellants were together in
committing the crime is confirmed by the admissions of Ricardo Atencio in his statement sworn to before Judge Valila (Exh. K) and in his testimony at the investigation by Fiscal Daling (Exh. N).  Gremio is also
corroborated by the stolen articles belonging to the deceased (particularly the
belt and the violated piggy bank) found in Ricardo Atencio’s
farm, and the stolen T-shirt that accused Domingo Atencio
was wearing when arrested.

To bolster its case, the defense calls attention to erasures in
the caption of Exhibit D, the confession of December 15 (where Ricardo asserted
being the lone perpetrator), and theorizes that this was the first confession,
but that the inves­tigators forced Atencio to
incriminate his companions in Exhibit K, dated December 13; to render the
latter more plausible, the date of the supposed first confession (Exh. D) was altered to December
15, so as to make it appear that it was made after December 13, when Exhibit K
was sworn to by said appellant before Judge Valila.  This ingenious and complicated theory is
discredited by the fact that examination under a magnifier reveals that the
date of Exhibit D (December 15) is unaltered, although typed twice because the
first “15” was only lightly imprinted.

Nor do we find the alibis of herein accused-appellants
duly established.  The testimony of Marcelino Mendador, a neighbor of
Domingo Atencio in sitio Guba, Dancalan, Bobon, Samar,
accounting for the latter’s movements from 6
o’clock in the evening of December
7, 1961 until 6 o’clock
of the following morning, does not appear credible.  It is unlikely that a disinterested person
would take note of what his neighbors are specifically doing at certain times
of the night of a particular day.  The
fact that sitio Guba is
adjacent to sitio Pocdol,
in the same barrio of Dancalan, does not also obviate
the possibility that in the intervening period, between 6 o’clock in the
afternoon of December 7, 1961, and 6 o’clock in the morning of December 8,
1961, accused Domingo Atencio could have gone with
his brother and Silvestre Colisao and Bonifacio Gremio to the house of
Gerardo Rapsing.

As to Silvestre Colisao, the testimony
of Casiano Celespara that
he saw Silvestre in the house before he (Casiano)
slept at 9 o’clock in the evening of December 7, 1961 does not invalidate
the declarations of Bonifacio Gremio
in court.  The house of Silvestre Colisao is in sitio Bantilen, also in barrio DancaIan,
and the incident in the house of Gerardo Rapsing in sitio Pocdol of the same barrio
was committed at about 2 o’clock in
the morning of December 8, 1961.  While Casiano’s
testimony may contradict Bonifacio’s declaration that
Silvestre was with Ricardo and Domingo when the latter picked him up in their
house, still, that does not destroy the prosecution’s evidence that Silvestre
was with the group when they reached the house of Gerardo Rapsing
and that he was one of the three armed men who ascended that house.  Additionally, we take note of Casiano Celespara’s testimony
that he learned of the death of Gerardo Rapsing,
Sebastian and Daniel Rosita at about 9 o’clock
in the morning of December 8, 1961,
when Silvestre Colisao informed him (Casiano), that he (Silvestre) would be implicated there.8 It is
indeed strange that Silvestre Colisao should be able
to predict his involvement in the case that same morning when the bodies of the
victims were found, when even the investigator, Sgt. Yrigan,
testified that their primary suspect was only Ricardo Atencio
and it was only after the latter had given his statement on December 13, 1961 (Exhs. K to K-2) that the names of Domingo
Atencio, Silvestre Colisao
and Bonifacio Gremio came
into the picture.

The insinuation also that Bonifacio’s
testimony in court against the three accused was the reward for springing the
former out of incarceration does not appear convincing.  As early as December 15, 1961, Ricardo Atencio already owned sole responsibility for the crime,
there was actually no need for Bonifacio Gremio to testify the way he did if his only purpose were
to save himself.  Neither does the
contention of Silvestre Colisao that Bonifacio testified against him because his wife
reprimanded Bonifacio when she caught the latter
getting their cassava and that she took Bonifacio’s
empty trunk when he failed to pay a debt of P20.00, believable, in the absence
of proof that Bonifacio Gremio
is such a vindictive person who could charge another of so serious an offense
as the killing of three persons, just for the aforementioned reasons.

It is clear that the conspiracy, at least, to commit the robbery,
was shown.  The record affords no other
cogent explana­tion why these appellants, armed with deadly bolos, should
repair to the house of the victims in the dead of the night.  Accused Domingo Atencio
and Silvestre Colisao, while they may not have
participated in the slaying of the victims, nevertheless, are liable for the
crime actually committed, for the rule is settled that when homicide takes
place as a consequence of or on the occasion of a robbery, all of those who
took part in the robbery shall be guilty as principals of the complex crime of
robbery with homicide, unless there is proof that they had endeavored to
prevent the killing.10 
When a conspiracy is established, the act of one becomes the act of all.11 It
could be added that when well-armed men proceed to a house with intent to rob,
it is because they are bent in using their lethal weapons to eliminate any
opposition that may develop.

We now come to the question of whether or not the crime was
really attended by the aggravating circumstances of band, evident
premeditation, nighttime, dwelling and treachery.

The contention of counsel for the accused, to which the Solicitor
General agrees, that the circumstance of band cannot be appreciated in this
case, must be sustained.  For the
circumstance of “cuadrilIa” to be
considered, it is necessary that there be more than three armed malefactors
acting together in the commission of the offense (Art. 14, para.
6, Revised Penal Code).  It appears,
however, that while Ricardo Atencio, Domingo Atencio and Silvestre Colisao
were equipped with bolos, Bonifacio Gremio was unarmed. 
They, therefore, did not constitute a band within the contemplation of
the law.12

Similarly, the fact that the robbery was planned does not justify
the appreciation of the circumstance of evident pre­meditation, it being
inherent in robbery.13 Evident premeditation will only be
aggravating in a complex crime of robbery with homicide if it is proved that
the plan is not only to rob, but also to kill.14

As regard treachery, there is evidence that when the group
reached the place they had planned to rob, Ricardo Atencio,
Domingo Atencio and Silvestre Colisao
first went around the house to listen and ascertain if the occupants therein
were all asleep; that perhaps so assured, they entered the house.  Thereafter, Bonifacio
Gremio, who was left downstairs, heard the voices of
two grown-ups and that of a child, and hacking or chopping sounds.

Capitalizing on this portion of the testimony of prosecu­tion witness
Bonifacio Gremio, the
accused argue that if the victims were not asleep when they met their death,
then the attack on them cannot be considered coupled with treachery.

There is no merit to this allegation.  The witness stated that he heard the voices
and hacking sounds, presumably produced by the bolo used by the attacker or
attackers in inflicting injuries on the victims.  He did not say he heard conversations or
words denoting the victims’ complete or full awareness of the presence of the
robbers.  The sounds emitted by them
could have been groans or cries of pain when they received the injuries.  In fact, from the position of the body of the
old man, Gerardo Rapsing, when it was found,15
i.e., lying on the mat and still covered with his blanket, it can be deduced
that death came to him while he was asleep. 
At any rate, even assuming that the victims were suddenly roused by the
movements of the intruders in the house, their immediate slaying does not make
it less treacherous.  An attack on a
person who has just awakened from sleep is considered attended by treachery,16
because the victim, who may still be dazed and unprepared for the attack, would
not be in a position to offer any risk or danger of retaliation to the
attacker.

On the circumstance of nocturnity,
contrary to the allegation of counsel for the accused, there is sufficient
proof that the offernders purposely sought nighttime
to commit the crime.  Consider the facts
that the trio of Ricardo, Domingo and Silvestre invited Bonifacio
to join them in a “good time” that evening;17 that they revealed that the plan
was to rob Gerardo Rapsing; that they tried to
ascertain whether the occupants of the house were asleep, thereby indicating
the desire to carry out the plot with the least detection or to insure its
consummation with a minimum of resistance from the inmates of the house.  This aggravating cir­cumstance was,
therefore, properly appreciated in the present case.

Similarly, there is no merit to the assertion that dwelling is
inherent in the crime committed in the case at bar.  The claim is untenable for while dwelling may
be appreciated as inherent in a case of simple robbery, it has been ruled that
the same cannot be said when the offense is robbery with violence or
intimidation against persons,18 because in the latter instance,
the crime can be performed without need of violating the abode of the victim.19

WHEREFORE, after due consideration of the evidence herein
presented, we declare the accused Ricardo Atencio,
Domingo Atencio and Silvestre Colisao,
all guilty as principals of the complex crime of robbery with triple homicide, attended
by the aggravating circumstances of treachery, nighttime and dwelling, without
any mitigating circumstance to offset them, for which the appropriate penalty
is death.  But, while the members of the
Court agree that this penalty imposed upon appellant Ricardo Atencio should be affirmed, there is divergence as to its
application in the case of the other appellants.  For lack of necessary votes, therefore, the penalty
meted out to accused Domingo Atencio
and Silvestre Colisao is reduced to life imprisonment
(reclusion perpetua).  All three, however, shall pay jointly and
severally the value of the stolen goods amounting to P409.40, and indemnify the
heirs of Gerardo Rapsing in the sum of P6,000.00; the heirs of Sebastian Rapsing,
in the like sum of P6,000.00; and the heirs of Daniel Rosita also in the sum of
P6,000.00; besides, they shall pay 3/4 of the costs.

SO ORDERED.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez,
Ruiz Castro, Angeles, and Fernando, JJ., concur.

^[1]
Exhibits L to L-19.

^[2] Exhibit E (given to the deceased Gerardo by his son, Jesus Rapsing, t.s.n., Abata, pp. 17, 25).

^[3]
Exhibit F.

^[4]
Exhibit I.

^[5] Exhibits G and G-1.

^[6] On December 14, 1961 (t.s.n., Cardenas, p. 47).

^[7] A sitio adjacent to sitio
Pucdol where the robbery and killings took place.

^[8] People vs. Serrano, G.R. No. L-7973, April 27, 1959.

9 t.s.n., p. 143, Sept. 12, 1963.

10
People vs. De la Rosa, 90 Phil. 365; People vs. Gibre, 93 Phil. 5; U.S. vs. Macalalad,
9 Phil. 1; U.S. vs. Bustos, 4 Phil. 189.

11 People vs. Yakan Labak, G.R. No.
L-1189, Oct. 31, 1960.

12 U.S.
vs. Melegrito, 11 Phil. 229.

13 U.S.
vs. Blanco, 10 Phil. 298; People vs. Daos,
60 Phil. 143; People vs. Pulido; 85 Phil. 695;
People vs. Valeriano, 90 Phil. 15.

14 People vs. Pulido, supra.

15 Exhibit L-12.

16 People vs. Avila, 92 Phil.
805.

17 p. 33, t.s.n.,
January 29,
1963.

18 People vs. Valdez, 64 Phil.
860; People vs. Akai, 84 Phil. 54.

19 People vs. Valdez, supra.