THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. EMILIO GAZMIN, ET AL., DEFENDANTS. GREGOKIO TUMABAT, RUPERTO TUMABAT AND AVELINO MALANO, DEFENDANTS AND APPELLANTS.

Two families composed of Eugenio Buhangin, his wife Eosa Gagutan,
their two daughters Melchora and Gliceria; and of Antonio Gagutan, his
wife Adela Guzman, Eusebio Gagutan, and two infants, children of Rosa
and Adela, lived in a house located in the barrio of Mabant&d,
municipality of Cauayan, province of Isabela. As usual in rural
communities, on the evening of 2 December 1948, they retired early, but
at about 10 or 11 o’clock in the evening of that day they were awakened
by a gun report and shortly, thereafter. Gregorio Tumabat armed with a
rifle, followed by Emilio Gazmin; armed with a shotgun, opened the door
and entered the house, and Ruperto Tumabat armed with a pistol and
Avelino Malano carrying a long bolo entered it through the window.
Emilio Gazmin told Eugenio Buhangin to Me down face downwards and asked
him where he kept his money. Antonio Gagutan had slipped from the house
through the window after hearing the gun report and before the
malefactors entered the house and hid himself in the banana stalks
growing not far from it. When the malefactors entered the house, it was
lighted by a petroleum lamp. Emilio Gazmin proceeded and succeeded in
force opening a trunk and found a bamboo tube where the money of
Eugenio Buhangin and Rosa Gagutan was kept, consisting of three (8)
twenty-peso bills and four (4) ten-peso bills, or a total of one
hundred pesos (P100), which Emilio Gazmin took and pocketed after
breaking the bamboo tube. While the latter was engaged in looking or
searching for the money in the trunk, Gregorio Tumabat guarded Eugenio:
Buhangin. Thereafter, Emilio dragged Rosa Gagu’ tan, who was carrying
her baby, to the porch and Gregorio pulled and brought Adela Guzman
under the porch causing her to. drop her seven-month old baby from her
arm. By putting from behind his right arm under the armpit of Rosa and
holding her neck tightly, Emilio caused her to stoop and pushed her to
the siding and in that position he unbuttoned his trousers and put his
penis into her genitals from behind, but as she resisted and wiggled he
failed to ejaculate. By the use of force upon Adela, Gregorio succeeded
against her will in having sexual intercourse with her. While Adela was
resisting Gregorio lie found three. (3) ten-peso bills wrapped up in a
handkerchief inside her chemise which he took. While the two accused
were ravishing the two women, their two companions Ruperto Tumabat and
Avelino Malano kept watch on Eugenio and the other inmates of the house
Ruperto and Avelino carried away Eugenio Buhangin’s fishing net valued
at sixty pesos (P60). The four malefactors left the house and on the
way they stopped at a nearby house belonging to Jose Calimag, shot a
pig valued at eighty pesos (P80) belonging to Eugenio Buhangin
entrusted to the care of Jose Calimag and carried the pig away. Adela
and Rosa returned to the living room weeping and told Eugenio what
Gregorio and Emilio had done to them.

Upon this evidence the trial court found Gregorio Tuitnabat,
Ruperto Tumabat and Avelino Malano guilty of the crime of robbery in
band with rape, as charged in the information, and sentenced eaeh to
suffer the penalty of reclusion perpetua, the accessories of
the law, to indemnify, jointly and severally, Eugenio Buhangin in the
sum of two hundred forty pesos (P240) and Adela Guzman in the sum of
thirty pesos (P30), to further indemnify Rosa Gagutan and Adela Guzman
in the sum of five hundred pesos (P500) each, and to pay the
proportionate costs. Upon a plea of guilty Emilio Gazmin’was sentenced
accordingly. From this judgment the three defendants have appealed.

Appellants’ defense is alibi. Gregorio Tumabat’s is to the effect
that on 2 December 1948, Felix Salvador and Ariston Acob went to his
house to buy corn and as they could not return home because it was
already late in the evening, they took their supper and slept in his
house on the night of that day. Gregorio never went out during that
night. Ruperto Tumabat’s is to the effect that at dusk he, together
with Marcelo Gandesa, went to Calagui River in the barrio of Carabatan
Chica and there fished the whole night from 2 to 3 December 1948.
Avelino Malano’s is to the effect that on 2 December 1948 he was called
by Pilar Baccay to warm water with which to give sponge bath to her
granddaughter who was suffering from fever and convulsions. This
defense cannot prevail over the positive testimony of Eugenio Buhangin,
Rosa Gagutan and Adela Guzman, who saw and recognized the four
malefactors known to them because they were barrio mates and there was
a lighted petroleum lamp in the house. Gregorio Tumabat, Ruperto
Tumabat and Avelino Malano testified that the witnesses for the
prosecution, who pointed to them as the perpetrators of the crime of
robbery in band with rape, had no motive to impute to them such a
serious crime. The appellants having denied that Emilio Gazmin was with
them on the night of the commission of the crime, the prosecution put.
him on the witness stand and testified on rebuttal that on the night of
2 December 1948 the appellants and he were together and all of them
went to the house of Eugenio Buhangin.

We are convinced that the indivisible complex crime charged in the information was really committed by the appellants.^[1]
The penalty imposed by the trial court in its maximum period because
the crime was committed by a band, being in accordance with law, is
affirmed, with costs against the appellants.

Paras, C. J., Feria, Pablo, Bengzon, Tuason, Reyes, Jugo and Bautista Angelo, JJ., concur.

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^[1] U. S. vs. Tiongco, 37 Phil., articles 294, par. 2, and 246, as amended by Republic Act No. 12, of the Revised Penal Code.