THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. ANDRES CABARABAN, DEFENDANT AND APPELLANT.

This
appeal brings up for review a judgment of the Court of First Instance
of the Province of Misamis, condemning the defendant, Andres Cabaraban,
to six months of arresto mayor, to pay a fine of P300, with
subsidiary imprisonment in case of insolvency, and to the payment of
the costs of the cause for a violation of the first paragraph of
article 491 of the Penal Code.

Victorico Chaves and his wife,
Getulia Neri, were living in September, 1915, in the municipality of
Cagayan, Province of Misamis, in a house consisting of three bedrooms,
a sala, kitchen, a servants’ room below, and two other small rooms. On
the night of September 5, 1915, Getulia Neri and her daughter Remedios,
about 17 years of age, were sleeping in the same bed in one of the
rooms of the house, which room was also occupied on that night by
several other children of Getulia and some four servant girls. Another
bedroom was occupied by another member of the family and a servant. The
room below was occupied by a man and a boy. The husband Chaves was
absent. About 12 o’clock on that night the defendant was discovered in
the room occupied by Getulia and her children, hiding behind an
“harigue.” On being discovered the defendant ran down the steps and
escaped through the room below, leaving his hat upstairs by one of the
windows. A bamboo ladder was found on the outside, set up against the
house under this window. The defendant admitted that he was in the
house at the time indicated, but testified that he was there on the
invitation and by the consent of Getulia Neri. And this is the
principal question involved in this case.

In support of his
defense to the effect that he was in the house on the invitation of
Getulia Neri, the defendant testified that he had been having amorous
relations with Getulia for some time; that he had frequently entered
the house on Getulia’s invitation prior to the night in question; and
that these facts were known by other people. The defendant offered in
evidence a photograph of Getulia Neri and two documents which he
claimed were letters written by Getulia to him. The defendant’s wife
and brother-in-law testified that they had seen the defendant enter the
house of Getulia late at night by passing through a window on three
previous occasions. The brother-in-law was unable to recall the date of
the first visit. He stated that it was during a month which he could
not remember. He stated that the other visits were on December 19,
1914, and April 6,1915. He testified that he told the defendant’s wife
of these visits. The wife testified that she saw her husband come out
of Getulia’s house on December 19 and April 6, and that she remembered
these dates because she had made a note of them on the calendar. The
wife made no disturbance whatever about this conduct of her husband.
Getulia denied ever having any such relations with the defendant and
testified that the two documents, which were neither dated nor signed,
had not been written by her. Chaves, his wife Getulia, and his family
resided in the barrio of Umalag, municipality of Tagoloan, which is
some 10 or 15 kilometers from their home in Cagayan, during the months
of April, May, June, and July, 1915. Getulia gave birth to a child in
May, 1915.

The trial court sustained an objection to the
admission of the photograph and the two documents, upon the ground that
the photograph had just been turned over to the defendant by his
sister-in-law on the day before the trial and because the two documents
were neither signed, dated, nor addressed to anyone, and for the
further reason that Getulia denied all knowledge of these documents,
and the defendant failed to prove that they had been written by her.
The trial judge made a thorough examination of the evidence and set
forth in detail his reasons why he declined to believe the testimony of
the defendant and his witnesses, overlooking no fact or circumstance
and giving due weight to all of the evidence. The detailed findings of
fact set forth in the decision of the trial court are fully supported
by the record and leave no room for doubt as to the guilt of the
defendant.

Counsel de offlcio for the defendant in
this court asked that a new trial be granted because of the failure of
the trial court to unite with the record the photograph and the two
letters, thereby depriving this court of the opportunity of examining
the handwriting of the two documents for the purpose of determining
whether or not they were, as a matter of fact, written by Getulia Neri.
While it is the better practice to unite with the record exhibits of
this character which have been rejected, yet the failure to do so in
the instant case cannot in any manner prejudice the rights of the
defendant for the reason that it has been clearly established that the
letters were not written by Getulia Neri. The trial court found that
the letters were fabricated and that they, even if written by Getulia,
contained no
invitation to visit her or enter the house.

The
judgment appealed from being strictly in accordance with the law and
the merits of the case, the same is hereby affirmed, with costs against
the appellant. So ordered.

Torres, Carson, Moreland, and Araullo, JJ., concur.