EN BANC

[G.R. No. L-22518. January 17, 1968.]

THE PEOPLE OF THE PHILIPPINES , plaintiff-appellee, v s . RICARDO

ATENCIO, SILVESTRE COLISAO, and DOMINGO ATENCIO , defendants.

Solicitor General for plaintiff-appellee.

Deogracias T. Reyes and Associates for defendant Ricardo Atencio.
Alice V. Pesigan for defendants Silvestre Colisao and Domingo Atencio.

SYLLABUS

1. EVIDENCE; ACCUSED'S PARTICIPATION WELL ESTABLISHED BY

EVIDENCE. — Ricardo Atencio's role and participation 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 by his two extra-judicial confessions
of his guilt but also by the fact that 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 as one of the three persons who went up the house where the
bloody bodies of the victims were found by the following morning. Furthermore, the
statement in his extra-judicial confession contained details which were either admitted
by the accused as true during the trial, or corroborated by other witnesses. There is
then no doubt 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.
2. ID.; ID.; CONSPIRACY; TESTIMONY IN COURT OF CONSPIRATOR
RELATING TO THE CONSPIRACY ADMISSIBLE AGAINST CO-CONSPIRATORS. — The
rule that "the act or declaration of conspirator 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 any to extra-judicial 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. (People vs. Serrano, G.R. No. L-
7973, April 27, 1959).
3. ID.; ID.; ID.; ID.; CASE AT BAR. — When Bonifacio Gremio, in this case, took
the witness stand and testi ed 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 eyewitness 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-examination by the separate counsel for the accused.
4. ID.; ID.; ID.; ID.; TESTIMONY TO BE REGARDED WITH SUSPICION — The
fact that Bonifacio Gremio is a co-conspirator, demands of course, that his testimony
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 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 con rmed 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.
5. ID.; ROBBERY WITH HOMICIDE, LIABILITY OF ALL WHO TOOK PART IN
ROBBERY. — 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.
6. ID.; ID.; AGGRAVATING; CIRCUMSTANCE; "CUADRILLA"; REQUISITES. —
For the circumstance of "cuadrilla" to be considered it is necessary that there be more
than three armed malefactors acting together in the commission of the offense (Art.
14, par. 6, Revised Penal Code). It appears, however, that while Ricardo Atencio,
Domingo Atencio and Silvestre Colisao were equipped with boloes, Bonifacio Gremio
was unarmed. They, therefore, did not constitute a band within the contemplation of the
law.
7. ID.; ID.; ID.; EVIDENT PREMEDITATION INHERENT IN ROBBERY. — The fact
that the robbery was planned does not justify the appreciation of the circumstance of
evident premeditation, it being inherent in robbery. 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.
8. ID.; ID.; ID.; TREACHERY; ATTACK ON PERSON JUST AWAKENED. — 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,
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.
9. ID.; ID.; ID.; NOCTURNITY. — There is su cient proof that the offenders
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; 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.
10. ID.; ID.; ID.; DWELLING; INHERENT ONLY IN CASE OF SIMPLE ROBBERY —
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, because in the latter
instance, the crime can be performed without need of violating the abode of the victim.

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 DECISION

PER CURIAM : p

Automatic review of the decision of the Court of First Instance of Samar (in Crim.
Case No. 733), nding 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 victim, 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:

1 ring (chinese gold) valued at P45.00

1 ring (pure gold) valued at 35.00
3 pairs of earring valued at 25.00
1 pair of earring (pearl) valued at 10.00
1 pair of earring (pure gold) value at 10.00
1 necklace (chinese gold) value at 50.00
Savings box (piggy bank) containing coins valued
40.00
at
Cash money (bill) value at 20.00
2 kettles valued at 5.90
1 flatiron valued at 6.50
1 dozen table knife valued at 13.00
1 dozen silverware (fork and spoon) valued at 16.00
1 dozen plates valued at 14.00
4 bolos valued at 19.00
1 umbrella valued at 6.00
6 pieces of skirts (saya) valued at 20.40
3 pants (maong, grey and west point khaki) 18.00
4 pieces of blanket valued at 41.00
———
TOTAL AMOUNT P394.80

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
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 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
cause 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, a l i a s Boning, discharged from the
information to be utilized as the lone witness. On the same day, the three remaining
accused were ordained 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
band, 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 x, 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 oor. She ran to the
house of her brother and informed the latter of her discovery: her nephew called 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.

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 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 de ned.
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 importance branches of the carotid 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 oor 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 oor 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)

Upon 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, 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,
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 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 bamboo 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 identi ed
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 testi ed 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 testi ed that on December 10, 1961, he and his
family returned to Bobon to attend the last of the "novenario" for his stepfather; 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 he 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 testi ed 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
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 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 testi ed 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 a rmative. The defense likewise presented sur-
rebuttal evidence.
On January 15, 1964, the trial Court rendered judgment against the three
accused, nding them guilty as charged, of robbery with triple homicide attended by
ve 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 counsel de oficio for Ricardo Atencio, and for Domingo Atencio and Silvestre
Colisao, contest the decision under consideration, alleging that the trial Court
committed error (1) in nding that there was conspiracy among the three accused to
commit the crime; (2) in nding accused Domingo Atencio and Silvestre Colisao guilty
of robbery with triple homicide; (3) in nding that the commission of the offense was
attended by ve 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 and 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 had sold
copra; that Ricardo lost some money in a card game, and that the articles taken from
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 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 testi ed
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 nding 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 nding 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 conspirator 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 testi ed 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,
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 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 led (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 con rmed 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 rst 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 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 magni er
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 nd 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 speci cally 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 Dancalan, 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,
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 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. 9 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, testi ed 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 testi ed 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. 1 0 When a conspiracy is established, the act of one
becomes the act of all. 1 1 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 "cuadrilla" to be considered, it is necessary that there be more
than three armed malefactors acting together in the commission of the offense (Art.
14, par. 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. 1 2
Similarly, the fact that the robbery was planned does not justify the appreciation
of the circumstance of evident premeditation, it being inherent in robbery. 1 3 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. 1 4
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 rst went
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 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 in icting injuries on the victims. He did not say he heard conversations or
words denoting the victim's complete or full awareness of the presence or 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, 1 5 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, 1 6
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 su cient proof that the offenders 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, 1 8 because in the latter instance, the crime can be performed without need of
violating the abode of the victim. 1 9
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 a rmed, 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.
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 So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez,
Ruiz Castro, Angeles and Fernando, JJ., concur.

Footnotes
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 of 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.

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