THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. GABINO ALQUEZA, DEFENDANT AND APPELLANT.

Notwithstanding the accused’s protests of innocence, he was
sentenced by the Court of First Instance of Zambales to seventeen years, four
months and one day reclusion temporal, with the accessories of the law,
to endow the offended party in the sum of P500, to support the offspring, if
any, and to pay the costs, for the crime of rape, with the aggravating
circumstance of abuse of confidence.

In this appeal, the defendant reiterates his protests of
innocence, imputing two errors to the trial court: in finding the evidence to be
sufficient, and in holding that the facts in the case constitute the crime of
rape.

Counsel for the defense finds signs of improbability in the
accused having committed the crime in a small house at a time when his own wife
was in the same house; in the fact that the offended party was not physically
examined until after thirty-eight days from the occurrence, and in not offering
resistance. But, as a matter of fact, at the time of the incident the accused’s
wife, a sickly woman, was in one of the kitchens of the house, some 7 varas
distant, according to the accused himself, from the room where the act took
place, or some 6 meters, according to the mother of the offended party, the
latter being at that time a girl of 14 years of age, and physically weak.

With these circumstances in his favor, the accused thought not
to attract his wife’s attention, who at that time was cooking, and for greater
safety, put a piece of cloth into the offended party’s mouth, that the latter
might riot be able to scream.

As to the physical examination, the provincial fiscal stated at
the trial that it was not promptly submitted because no one requested it—due, no
doubt, to the lack of knowledge of its necessity on the part of the interested
parties,—and it was only when the case came up before the Court of First
Instance and it was discovered that it had not been made, that the physical
examination was effected. The lack of a prompt examiniation is no argument
against the prosecution.

As regards the resistance offered by the offended party, it
appears from the record that she did resist. After the offended party had
verbally and actively refused the accused’s illicit proposal, was thrown to the
floor, held there and gagged with a piece of cloth; she was weeping, and as soon
as her mother arrived she complained of the outrage.

We find the evidence sufficient and the facts proven constitute
the crime of rape.

The lower court took into account the abuse of confidence as an
aggravating circumstance.

We take it that in this particular case the fact that the
accused lived in the same house as the offended party is not enough, in itself,
to hold that there is such aggravating circumstance, for after all, that house
did not belong to the offended party (pp. 22, 61, 62, t. s. n.). As this court
said in the case of United States vs. Cabaya Cruz (4 Phil., 252), it might serve
to describe the accused’s conduct as disgraceful, but not as an abuse of
confidence, for which it is required to show what was the confidence reposed in
the accused, and that it facilitated the commission of the crime, in order that
it might be judged whether or not he had abused such confidence.

We hold that the crime proven in the record is rape without any
modifying circumstance, of which the herein appellant is guilty.

Wherefore, the judgment appealed from is modified, and under
the provisions of article 438 of the Penal Code, the accused is hereby sentenced
to fourteen years, eight months and one day reclusion temporal, the
judgment being affirmed in all other respects, with costs against the appellant.
So ordered.

Avanceña, C. J., Johnson, Street, Malcolm, Villamor,
Ostrand, and Villa-Real, JJ., concur.