THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. MARCELINO COLLADO (ALIAS NINOY), DEFENDANT AND APPELLANT.

Taking advantage of the fact that Paula
Bautista, a young married woman, was alone in her house which is
situated in the eastern part of the town of Bacnotan of the Province of
La Union, with no companion but her three-year old child who was then
asleep, the accused, between 3 and 4 in the afternoon of July 31, 1933,
went to the house of said woman on the pretext of asking for u glass of
water, stealthily approached her and, without giving her an opportunity
to defend herself, embraced and kissed her and caught hold of her
breasts. When Paula Bautista recovered from the shock, she defended
herself as best she could and in spite of the fact that the accused
threatened to kill her with a dagger if she did not accede to his
desires, she bit him on the right side of the chest thereby forcing him
to release her instantly. Simultaneously therewith, she cried for .help
and, picking up a bolo nearby, she tried to strike him with it.
However, the accused, who is stronger and more agile than she,
succeeded in holding her by the arms and they were found in this
position by Crispulo Ariola who was the first to come to her aid.
Realizing that his designs had been frustrated and having been
surprised in such situation by Ariola, he did not go down the stairs
but jumped from the house to the ground, fleeing from the scene of the
crime with the utmost speed. These are the facts as found by the trial
court in which this court agrees after having carefully reviewed the
record and the evidence.

In view of the above facts, the trial court sentenced the
accused to an indeterminate penalty of from two months and one day of arresto mayor
to two years, four months and one day of prisi&n correctional, with
the corresponding accessories of the law, with costs. Not agreeing with
the sentence imposed upon him, the accused appealed therefrom to this
court, assigning in his brief four alleged errors as committed by the
trial court.

In support of his contention that the trial court actually
committed the errors assigned by him, the appellant cites some portions
of his own testimony and later alleges that the crime imputed to him is
absolutely improbable on the ground that at that time he knew that
about 6 meters from the house of the offended party Paula Bautista, her
cousin Crispulo Ariola and the witness for the defense Paulino Palaroan
were conversing, claiming furthermore that at the time when he is
alleged to have committed Hie acts of lasciviousness on the offended
party, which is referred to in her testimony, the witness for the
defense Laureano Nebrija was in her house, thus conveying the idea that
it would have been folly on his part to commit the crime with which he
is charged.

The fact that when he went to the house of the offended party the
accused knew that said two witnesses Ariola and Palaroan were not far
away, does not make it improbable for him to have committed the crime
charged, because, inasmuch as the offended party was alone in the house
and furthermore her husband was absent, having gone to Manila about a
month ago to work as an agent, and, in addition thereto, the accused
had threatened to kill her if she did not accede to his desires, at the
same time showing her a dagger, he must have believed that she would
neither offer any resistance nor give a cry of alarm. Moreover he might
have thought that said two witnesses Ariola and Palaroan would not
continue conversing at the same place after he had left them.

That the witness for the defense Laureano Nebrija was not in the
offended party’s house when the crime was committed, should be believed
notwithstanding the fact that he testified that he was present and
witnessed said incident from the beginning, because aside from his
testimony and that of the appellant, there is nothing in the record to
prove the contrary. Ariola and Palaroan did not testify that they had
.seen said witness come out of the offended party’s house either before
or after the appellant had escaped therefrom, in spite of the fact that
they were only 6 meters away. Furthermore, Crispulo Ariola and Luis
Cariaso, the other witness for the prosecution who was the second to
come to the aid of the offended party, testified that when they went up
into the house they found only said offended party and her small child,
not mentioning the appellant who, as was stated, fled as soon as he saw
Crispulo Ariola come up into the house. Furthermore, leaving aside the
witness Palaroan’s statement to the fiscal when the latter summoned him
to testify on what he knew about the incident that he knew nothing
about the case, Falaroan could not help but admit that after he had
arrived at his boarding house which is about 25 meters from Paula
Bautista’s house and also after said witness Ariola had gone up into
the latter house, he saw the appellant walking rapidly. This shows that
the appellant actually came out of said house with the utmost speed and
that Palaroan left Ariola when the appellant went to the offended
party’s house to ask for a glass of water.

On the other hand if, according to the appellant’s version, all
that happened consisted in the offended party having reproached him
because she had heard, that he had been spreading false reports that
she was his mistress or th&t the two were maintaining illicit
relations, it does not account for the fact that before reproaching him
she permitted him to drink water in her house. The evidence shows that
upon going up into the house, the appellant asked the offended party
for a drink which, according to him was given him. What really
happened, according to the evidence, is that the appellant upon seeing
that the offended party, whom he had courted before her marriage,
although in vain because she paid no attention to him, was alone, he
was led into temptation, thus again proving the old adage that
“opportunity makes the thief”.

There is no doubt but that the offended party cried for help
notwithstanding the witness Palaroan’s testimony that he heard no such
cry coming from the offended party’s house. Her cry was heard by
Crispulo Ariola and Luis Cariaso and, if we are to believe said witness
Palaroan, it was also heard by Ariola’s father named Agaton Ariola at
his house about 25 meters distant from that of the offended party.
Palaroan testified that while he and Crispulo Ariola were 6 meters from
the offended party’s house and therefore nearer to said house than
Agaton Ariola, Palafoan heard Agaton Ariola tell his son Crispulo to go
and find out what was happening at the offended party’s house. This
shows that said offended party actually cried for help for, otherwise,
Agaton Ariola, who was very much fartfier than said witness Palaroan,
could not have heard it.

The foregoing proven facts really constitute the crime of acts of
lasciviousness defined in article 336 of the Revised Penal Code and
punished therein with prision correccional. Inasmuch as the
aggravating circumstance of dwelling had been proven at the trial,
although it was not alleged in the information, it should have been
taken into consideration by the trial court on the ground that the
appellant had committed the crime in the offended party’s own dwelling.
In the case of United States vs. Campo (23 Phil., 368), this
court, in view of the reasons therein stated, held that although a
complaint or information contains no allegation that generic
aggravating circumstances of any kind were present in the commission of
the crime, said circumstances may be proven at the trial and, if
proven, must be taken into consideration in imposing the corresponding
penalty.

Wherefore, the sentence appealed from is modified by imposing upon
the appellant an indeterminate penalty of from six months of arresto mayor to four years, two months and one day of prision correccional, with costs. So ordered.

Avancena, C. J., Street, Abad Santos, and Vickers, JJ., concur.