This case has  been brought up for a review  of the judgment dated October 8, 1914, whereby the Honorable Higinio Benitez found Lamberto Antonio guilty of the complex crime of robbery with quadruple homicide and sentenced  him to the penalty of death, with the  accessories  of article 53 of the Code,  an  indemnity of  P5,000 to  the surviving  girl, Consolacion Dagojoy, or her legal guardian, and payment of one-half of the costs; and acquitted Eulogio Bait (alias Oloy), with his share of the costs de officio,  ordering his immediate  release.


Late on the afternoon of June 9,1914, Lamberto Antonio (alias  Bitong) accompanied by his  brothers  called Bado and Martiniano and  by another individual who  proved to be Eulogio Bait  (alias Oloy)  entered the house  of Feliciano Dagojoy situated in the place  called  Catuguesan  of  the barrio of Valderrama, municipality of Culasi,  Province of Antique.  As  night had already fallen these four individuals asked for  lodging  in  the house the  owner whereof is the brother-in-law of Lamberto who is married to. Isabel Dagojoy,  sister of the householder Feliciano.  They  then had supper therein with Feliciano Dagojoy and his wife, Matea Gante; and while the spouses Feliciano and Matea after supper were engaged in shelling corn, and while the said Lamberto Antonio  (alias Bitong)  and Bado were still awake,  the boy Martiniano, about 12 years  of age, and Eulogio (alias Oloy), being worn out with fatigue, went to sleep.   But in the small hours of the night  or early the next morning Eulogio awoke and saw his companions Lamberto  and Bado  standing up, blood-stained  bolos  in hand, and in the front room  of the house Feliciano Dagojoy and his son of tender age, called Fortunato, dead.   In the bedroom Matea Gante and her daughter Teopista were also dead, and the girl Consolacion wounded was stretched out between her mother and her sister Teopista  so that  she was taken for dead.  Thereupon Bado and  Bitong forced open two  trunks  that were in the  house,  and also  two bamboo money boxes, the  cash  wherein they seized,  as well as the clothing in the trunk, putting it in a palm-leaf sack. Then they  went  away, taking the trunks and one of the bamboo money boxes which they later left in the road.  Oloy thereupon awoke  Martiniano and they  also went away.  The two first-named kept the money, clothing, and other  effects belonging to the deceased spouses who, on the previous afternoon, had hospitably received them as persons known and trusted.

The house  with the  four  corpses  and the  severely wounded girl  Consolacion remained abandoned until the next afternoon, June 10, when Macaria Tañongon, mother of the deceased Matea Gante, went to her daughter's house to see her, and upon making her way inside found  said four corpses and  also the girl Gonsolacion, about  5 years of age, who was still alive despite her various  wounds and was then  asking  for  a drink of  water; Macaria having picked her up, took her along and forthwith reported the matter to the  local authorities.  It is worthy of note that when Macaria Tanongon  was in the house where the crime occurred, Lamberto Antonio (alias Bitong)  called  to her from some  distance asking if there were any wounded persons in the house,  to which she replied affirmatively, saying that the little girl Consolacion was wounded,  and that thereupon Lamberto, without approaching the house where Macaria Tanongon was and  without having ascertained the reason for the occurrence, went toward his own.

On the same date, June 10, when  the Constabulary lieutenant Tañedo and various policemen attempted to arrest the so-called Bado, he started to run, whereupon  he  was shot dead.

For the purpose of making the proper investigation, the justice of the peace of Culasi went on the night of the  said date, June 10 of the year  just past, to the house of the deceased persons, which  was composed of three compartments that is, front room, bedroom, and kitchen its floor being raised three spans above the  ground.  In  the front room was found the boy Fortunato Dagojoy with one wound in his chest from which a portion of his lungs protruded, two wounds in his back, and two more at his waist.  Near him  was found the corpse of Feliciano Dago joy,  stretched out face downwards, with one wound in  his left side, another at the base of his left arm toward his back, another in the same arm  extending to the  bone, and another at the back of his head so that his neck was almost severed. In the bedroom of the house was found the corpse of the woman  Matea  Gante with one wound on the left  side of her neck, which was almost severed, another on the upper part of her ear, another  on the left side  of her head,  and another in her right forearm it being worthy of note that the wound in her neck showed signs of having been inflicted by three different blows the nicks from which showed on the  bone.  Near this corpse was likewise found that of Teopista Dagojoy, a girl of about 8 years of age, with a wound at the base of her left arm, which was severed, and two wounds, almost together, in her head.  There  was also  found  in the house an empty bamboo money box with its opening bloodstained.

The surviving  girl Consolacion Dagojoy was  found to have one wound in her left arm, another at the base of the same, another in her left shoulder, another in her left side, and the fifth in her left leg; all  of these  wounds were cured by July 20 following, through the ministration of the physician Doctor Asuncion.

The facts  set forth were fully proved at the trial, not only by the testimony of the girl Consolacion about 5 years of  age, the sole survivor of  the slaughter  of which her parents and her minor-brother and  sister were the victims, and by the testimony of the boy Martiniano, 12 years of age, who had  accompanied the  murderers  (all of  which statements are corroborated by another one of their companions, Eulogio Oloy, the defendant acquitted in this case), but also by  the result  of  the investigation made  by the justice  of the peace of Culasi on the night following the one when said crimes were committed; which facts served to confirm the statement of Macaria  Tanoñgon, mother of the deceased Matea Gante, who was the first to go to and to discover in the afternoon of that date, June 10, in her daughter's house the corpses of her daughter,  her son-in-law Feliciano Dagojoy,  and her minor grandchildren Teopista  and  Fortunato Dagojoy,. with various severe  and fatal wounds, as well as to find the 5-year-old girl, Consolacion  Dagojoy, with five wounds,  stretched out on the floor  beside her mother's corpse.

After perpetrating this crime  in a savage and ruthless manner, without the least pity upon  near relatives  of the wife of one of the  malefactors, Lamberto Antonio, brother- in-law of the unfortunate Feliciano Dagojoy, they proceeded to carry out  the  criminal purpose they had  formed by breaking open two trunks and  two bamboo money boxes wherein the deceased spouses had kept their scanty savings and by  taking possession of the money in those boxes and of the  trunks  that held their clothes, which  articles of furniture were thrown  away  in the  road after they had taken possession of the effects and the clothes therein by putting them in a  palm-leaf sack.

The facts stated  undoubtedly constitute the complex crime of robbery with quadruple  homicide and lesiones graves, provided for and  penalized in articles 502 and  503, No. 1 of the Penal Code, for with the undeniable intention  of stealing and  taking possession of the money, clothes, and other effects  belonging to the  spouses Dagojoy and Gante, the defendant Lamberto and his  brother 6ad6, now dead, attacked and killed  the owners  of the house and their children, excepting one girl who, through mere accident and notwithstanding the  number and severity of her wounds, did not die, but was pronounced cured after forty-one days of treatment.

In order to accomplish the definite act of robbery of the money, clothes, and effects in the  house they had to get rid of and kill all of  its inmates who,  if they could  not offer resistence, might at least see and witness that violation  of property rights; consequently  it cannot be denied that the complex crime  under prosecution was consummated.

The robbery was perfectly proven by the statements  of the robbers' two companions, Eulogio and  Martiniano (the latter their brother), by the finding of the trunks and one of the money boxes  empty in the road outside the  house robbed,  by the finding of the other money  box, also empty, inside the same house, and likewise by the finding of clothing, worn both by  the two dead spouses as well as by their children, and the personal cedulas of the husband Dagojoy in the house of the so-called Bad6, one of the murderers, after he had been killed in attempting to escape.  Moreover. there is evidence  in  the case tending to show  that the defendant Lamberto  owed various sums to his brother-in- law, the deceased  Dagojoy, but as it does not appear that trouble  and ill  will existed between the two for the Dagojoy spouses  received the robbers with  amiability and pleasure that night some hours before  the commission  of the horrible crimes, furnishing them supper and even lodging in their house there is no ground for  the presumption that the defendant Lamberto  and  his  brother proceeded to kill the Dagojoy couple and their children for the sole purpose of avoiding  the payment of Lamberto's debt, nor are there any data in the case from which it can be asserted that they acted on the impulse of any feeling of resentment or revenge.  Therefore it must be held that the murderers,  Lamberto and Bad6, killed said couple and two of their children with unusual cruelty for  the sole purpose of robbing them and of taking whatever they possessed, consequently the facts under consideration must be classified as robbery with homicide.

The defendant at bar, Lamberto Antonio (alias Bitong) pleaded not guilty and set up an  alibi, which was not absolutely proved, for his only witness, who is his wife Isabel Dagojoy, was not called to the stand.   This is easily explained by the fact that she is a sister of the deceased Feliciano Dagojoy, and, aside from the fact that the defendant Lamberto lived in the  place where  the crime occurred and near the house robbed, it would not have been impossible for him to have committed it during a brief absence from his house.  To this effect his companions Eulogio and Martiniano state in their testimony that they assembled in Lamberto's house to go over to the house robbed, and that after the crimes had been  committed Lamberto returned to his house, not very  far from  there, while  Bado  and his two companions went  back to their home  on Mount Lacauon.  The case, therefore, affords conclusive evidence that Lamberto Antonio  directly participated not only in causing the violent deaths of the Dagojoy couple and two of their children, as well as the serious wounds of the little girl Consolacion,  (for the  defendant  in  order to make sure whether she was dead or alive even pinched her nose before leaving  the house robbed, as appears from the trial) but also in the robbery that has been described.

In the commission of said crime of robbery with quadruple homicide various aggravating circumstances defined in article 10  of the Penal Code  must be held to have concurred:  No.  1, because the defendant  Lamberto was the brother-in-law  of the deceased Feliciano Dagojoy; No. 10, because there was abuse  of the confidence that said couple undoubtedly  reposed in him as a near relative;  No. 20, because the crime  was committed  in the dwelling of the victims; No. 15, because it was committed at night and by taking advantage of the time when the victims were tired and sleepy; and No. 2, because the deed was committed with treachery, which circumstance is held to include the abuse of superior  force.  The circumstance of treachery in the killing of the two children Teopista  and  Fortunato is found to exist because, whether they were awake or asleep at the moment of the crime, the killing of a child  of tender age, defenseless and  unprotected, must  always be classified as murder.   Even  though the deceased  children  had  been awake they could not have defended themselves or have fled or  escaped  from the attack of their assailants.  As for the violent deaths of the spouses Dagojoy and Gante, in view of the  location and nature of their wounds the presumption is that they were attacked treacherously and without risk while they were lying down  and  asleep so that they could not have defended themselves  or escape from the attack  of which they were the  victims.  This circumstance of treachery, when it concurs in the crime of homicide,  fixes the classification as murder; but when it concurs in the complex crime of robbery  with homicide it is only to be regarded as a generic aggravating circumstance, for this is a case of  a  complex  crime which has its  own definition  and  special  penalty in  the Penal Code.

On account of deficient instruction and lack of education on the defendant's part, the special circumstance established by article 11 of the Code, as amended by  Act  No. 2142, must be applied in his favor; but  even holding the  concurrence of this special circumstance to offset one  or several of the  aggravating circumstances  mentioned,  from  the nature of the penalty fixed in said article 503, No. 1, of the Penal Code, the final and extreme penalty fixed by the law must  still be imposed upon the offender in view of the large  number  of aggravating circumstances, the  greater portion of which are interrelated and lack other mitigating circumstances to offset them.  (Penal Code, art. 80, Rule 4.)

For the foregoing reasons the judgment  under review must be affirmed, with the costs of this instance against the defendant  Lamberto  Antonio, the  penalty imposed to  be executed at the date  and hour the  trial court fixes and in accordance  with the  provisions  of  Act  No. 1577.  So ordered.

Johnson,  Carson, Trent, and Araullo,  JJ., concur.