About the month of July,  1925, the offended party, Rafaela M.  Cruz, lived with her husband and two children, aged 8 and 4 years, respectively, in their house in the barrio of San Roque of the municipality of Zamboanga.   On the afternoon of the 6th day of that month the complaining witness was  alone in her house with her two children, as her husband,  who had  gone to  town,  did not come home that afternoon.  At about half-past six  the defendant, Matias Ebol, uncle of the offended party, went to the house carrying some fishes which he said, as was the fact, were sent to her by her husband.  The offended party took the fishes and cooked them  and then  invited the  accused to take supper with her, which  invitation he accepted.  After the supper it seemed as though it was  going to rain and the accused, fearing that the rain might overtake him on the way,  asked the offended party to allow  him to pass the night in her  house to which she consented.  The accused slept  in the  parlor and the offended party in the room accompanied  by her two children.  Between the two compartments  there  was  a   door that  was  kept  open most  of the time.   At about 4 o'clock in the morning the complaining witness woke up, feeling that a man, who was the defendant, was on top of her  attempting to have carnal knowledge  with her.  The offended party did all she could to avoid the  defendant's evil purpose  but the latter overcame  all her  resistance and succeeded  in  having carnal intercourse with her.  When the defendant left the house at dawn, the offended party immediately repaired to her mother's house in another  barrio, where her aunt Encarnacion Aguilar lived, in order to tell them what had happened to her.  When she arrived at  her mother's house and after relating the outrage just committed upon her, Encarnacion Aguilar accompanied her to the town to look for the husband  of the complaining witness,  and when they found him, she told him all  that had happened to her.

That same morning when the defendant saw the  complaining witness and Encarnacion Aguilar in the town, he expressed his resentment to the former for having informed her husband of the matter, telling her that he did it during a nightmare and prayed Encarnacion to intercede between him and the husband of  the offended party to  avoid  a heavy punishment.   On the afternoon of that  same day, July 7, the defendant was in the house of Macario Bonifacio and told the latter that he had  "forced" the offended party and mentioned the fact that he had no other alternative than to plead guilty and asked him  to look after his children.  These facts appear from the testimony of the complaining witness, Encarnacion Aguilar and Macario Bonifacio. Encarnacion Aguilar is a sister of the accused and Macario Bonifacio is his nephew.

About 10 o'clock in the same morning the offended party was examined by  Doctor Rodriguez  who found within her vagina  positive existence  of  spermatozoa.   The offended party stated that  she had  not had carnal intercourse with her husband since the 3d of that month.

The accused having been  charged with  the  crime of rape, he  was found guilty and there being present the aggravating circumstance  of nocturnity he was sentenced to seventeen years, four months and one day of  reclusion temporal  and  to  pay the costs.

The defendant's guilt is clearly  proven.   His sole defense was his own testimony  denying the  charge.   His counsel  in this instance states that  his guilt has  been proven beyond a reasonable doubt and only urges that the aggravating circumstance of nocturnity should not be taken into consideration as was  done by  the trial court.  The Attorney-General,  on the  other hand,  contends  that  the aggravating circumstance of the crime having been committed in the dwelling of the  offended party must be considered  in the  imposition of the penalty.  We are of the opinion  that at least the crime was committed with abuse of confidence taking into consideration the relationship between the offended  party  and  the  accused  and  the fact that the latter asked for shelter in  her house that night. At  any rate  the concurrence  of this circumstance justifies the imposition of the penalty in its maximum degree.

The  judgment  appealed from  is  affirmed with costs against  the appellant.   So  ordered.

Johnson, Street,  Villamor,  Ostrand, Johns, Romualdez, and Villa-Real, JJ., concur.