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[US v. TORIBIO ABANTO](http://lawyerly.ph/juris/view/ce02?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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[ GR No. 5266, Feb 16, 1910 ]

US v. TORIBIO ABANTO +

DECISION

15 Phil. 223

[ G. R. No. 5266, February 16, 1910 ]

THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. TORIBIO ABANTO, DEFENDANT AND APPELLANT.

D E C I S I O N

TORRES, J.:

At about  11 p. m. on the 15th of October, 1908, Macario Labitoria, asleep in his house situated in the barrio of Dumuit, town  of Tayabas, in the province of the same name, was awakened by some one on the outside calling him by name; he got up and opened the window to see who it was, and saw standing  in  front of his house two  individuals who asked him to allow them to pass the night in the house; he thereupon struck a light and  opened the door at  the top of the staircase, and inquired who they were, to which one of the men  answered that his name was Miguel.  At this moment, as the owner of the house, the lieutenant of the barrio, sought to recognize the stranger, another man, who was already  upstairs alongside the staircase, struck Labitoria on the forehead with a wooden stick;  as a result of the attack, the latter fell backward over a bench inside the house, and the aggressor, who turned out to be Toribio Abanto, passed  through the door and threw himself upon Labitoria, seizing him by the throat; at this, Urbano Quiambao, who was staying in the house that  night, seeing what was taking  place, caught up a stick of palma brava which he used for  carrying his stock of drygoods, and struck  the aggressor with it.   As a result of the struggle that  ensued between  the three, Toribio Abanto fell wounded  to  the ground, and after some time he was picked up by order of the justice of the peace, to whom Marcos Labitoria reported the affair, and the wounded aggressor was  carried in a hammock to the town.

For  these reasons the provincial fiscal filed a complaint on the 11th of  February, 1909, with the Court of First Instance of Lucena, charging Toribio Abanto with the crime of forcible  entry of a  dwelling.  Proceedings were instituted, and the trial judge entered judgment on the same date, sentencing  the defendant to the penalty of five years of prision correccional, to the accessory penalties, to pay a fine of 1,000 pesetas, with subsidiary imprisonment in case of insolvency, and costs.  From the said judgment the  defendant has  appealed.

Article 491 of the Penal Code reads :
"Any private individual who shall enter another's dwelling against the will of the tenant thereof shall be punished with arresto mayor and a fine of from 325 to 3,250 pesetas.

"If the deed were committed with violence  or intimidation, the penalties shall be prision correctional in its medium and maximum degree and a fine of from 325 to 3,250 pesetas."
The facts related and  fully proven in the present  case constitute the crime of forcible entry of a dwelling, defined and punished by paragraph 2 of the foregoing article, inasmuch, as on the night in question the defendant forcibly entered the house of Macario Labitoria; taking advantage of the fact that the house owner opened the door and put his head outside to ascertain who were the two persons  that were asking shelter, Abanto suddenly, and without reason, struck Labitoria a heavy blow on the forehead  with a stick (garrote) and when the  assaulted man fell over a bench inside his house,  the  aggressor passed through the open door and repeated the assault, grasping the latter, who had fallen over said bench, by the neck.  Thanks to the assistance rendered  by the guest, Urbano Quiambao, Labitoria fared no worse, nor was the accused Abanto, as prearranged with his two companions  who remained outside the house, able to accomplish his ulterior purpose,  It is probable that the latter did not dare enter the house upon hearing or observing the effective defense  offered by the owner of the house and his guest, Quiambao.

The circumstance that the dpor of the house was already open and that there was  no  previous express opposition or prohibition on the part of the owner thereof to the entry of the defendant is no bar to the qualification of the crime ; in order that the crime of forcible entry of a dwelling may be considered  as  having  been  perpetrated,  it is not an essential requisite that the door of the house should be closed; even if it were open, so long as the entry of a person is  opposed or prohibited by the tenant, the crime is committed if said individual introduces himself therein against the express will of its tenant.

Paragraph 2 of the above-cited article  is applicable  in this case, it having been fully proven that the defendant Abanto entered the house of the injured party in a violent manner, and  assaulted  the  latter from the  door to the interior of his house, and in view of such behavior it is not necessary that  express opposition or prohibition on the part of the tenant should have preceded the forcible entry.   Even in a semicivilized country it must be supposed that a person entering a house  with violence and maltreating the tenant, as stated herein before, would not obtain the tacit nor express consent of the latter.

The defendant pleaded not guilty,  and,  notwithstanding his allegations, not only unsupported by proof, but notoriously false and contrary to his own  testimony in another case instituted  against Mateo Lacuarin and Isaac de Ocampo, who accompanied him on the night in question,  these proceedings furnish evidence conclusive  beyond all reasonable doubt of his guilt as the sole principal of the crime herein prosecuted.  In the proceedings alluded to, brought against said persons for attempted robbery, the defendant Abanto testified that by order of  the latter, he called  to the injured party from the street and asked him for lodging,  and that when the door of the house was opened, he being near it, was at once maltreated  by  the inmates of the same, and not by  reason of the gambling that was going on therein; Ms testimony  in these proceedings is, therefore, false, being not only contrary to his former allegation, but contradicted by the  injured party and his house companion.

In the commission oi the crime herein the trial judge has rightly  considered  the  aggravating circumstance of nocturnity, for the reason that it was perpetrated at a late hour  and in the  silence  of night, without any mitigating circumstance to lessen its effects.   The  penalty of prision correccional in  its medium and maximum degrees, as fixed by the code, should be imposed upon  him in the maximum degree.

For the foregoing" reasons, and as the judgment appealed from is in accordance with the  law and the merits of the case, it is our opinion that the same should be and is hereby affirmed, with the costs against the appellant.  So ordered,

Arellano, C. J., Mapa, Johnson, Carson,  and Moreland, JJ., concur.

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