G.R. No. 1314. January 12, 1905

Three witnesses testified affirmatively as to the reality of the
housebreaking with which the appellant is charged. The act was executed
at midnight by five men armed with two guns and a revolver, and among
those five men the appellant was identified by one of the said
witnesses.

This witness could not be mistaken in identifying the appellant, for
the latter took her out of the house immediately after the entrance
thereto was forced, and she was at once taken to the house of the said
appellant, who retained her in the same during the period of three or
four days.

The authors of the offense exercised violence upon the persons
inhabiting the house, first by compelling the latter to come down and
tying them afterwards in order that two of the former might be able to
go upstairs and freely go about the house, while the other three
remained downstairs to watch the occupants. Evidently they did this
because they knew that the owners of the house would not consent to
their entering the same on account of the lateness of the hour and
because the defendant and his companions were unknown to them and above
all knowing their object, which was to rape one of the daughters of the
owners of the house.

The Court of First Instance, in view of the merits of the case,
considered the fact as constituent of the crime of housebreaking as
provided for in paragraph 2 of article’ 491 of the Penal Code, with the
aggravating circumstance that the offense was committed en cuadrilla and at night, and sentenced the defendant to four years nine months and eleven days of prision correctional, and to pay a fine of two thousand three hundred pesetas and the costs.

We find the judgment of the court below in accordance and consistent
with the law, not only as regards the legal appreciation of the facts
in the case but also as to the penalty imposed upon the defendant.

Therefore, we affirm the sentence in all its parts, with the costs of this instance charged against the defendant. So ordered.

Arellano, C. J., Torres, Johnson, and Carson, JJ., concur.