Homework Help

https://www.homeworkping.com/

Research Paper help

https://www.homeworkping.com/

Online Tutoring

https://www.homeworkping.com/Republic of the Philippines

SUPREME COURT

Manila

THIRD DIVISION

G.R. No. 133382 March 9, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

EFREN MENDOZA y SALVADOR, accused-appellant.

D E C I S I O N

PANGANIBAN, J.:

True, a father and husband has the duty and the right to defend himself, his family and his home.

However, in order to successfully invoke self-defense and defense of relative, he must prove, by

clear and convincing evidence, the concurrence of three elements, the most important of which

is unlawful aggression on the part of the victim. Absent unlawful aggression, these defenses

collapse and the accused must be convicted.

The Case

Efren Mendoza y Salvador was charged with murder for the July 14, 1993 killing of Anchito A. Nano.

Before the Regional Trial Court of Daet, Camarines Norte, an Information 1 was filed against him on

September 9, 1993, alleging as follows:

That on or about 7:30 o’ clock [o]n the evening of July 14, 1993, at Brgy. Manlucugan, [M]unicipality

of Vinzons, [P]rovince of Camarines Norte, and within the jurisdiction of this Honorable Court, the

above-named accused did then and there willfully, unlawfully and feloniously with deliberate intent to

kill, with treachery and evident premeditation, assault, attack and hack with a bolo one ANCHITO A.

NANO, thereby inflicting upon the latter multiple hacking wounds, which were the proximate cause of

his instantaneous death, to the damage and prejudice of the heirs of the victim.

CONTRARY TO LAW. 2

During his arraignment on October 22, 1993, appellant, with the assistance of Atty. Leo Intia,

entered a plea of not guilty. 3 On November 6, 1997, after trial in due course, the court a

quo rendered its assailed nine-page Decision, 4 the dispositive portion of which reads:

WHEREFORE, premises considered, this court hereby finds the accused, Efren Mendoza GUILTY

beyond reasonable doubt of the crime of MURDER defined and penalized under Article 248 of the

Revised Penal Code. The mitigating circumstance of voluntary surrender will not affect the penalty

imposed since it is offset by the aggravating circumstance of treachery. Wherefore, he is hereby

ordered to suffer the penalty of RECLUSION PERPETUA, and to pay the heirs of the deceased the

following:

a) P50,000.00 as death indemnity; and

b) P30,000.00 as moral damages.

The bond posted for the provisional liberty of said accused is hereby CANCELLED.

SO ORDERED. 5

Hence, this appeal. 6

The Facts

The Version of the Prosecution

In the People’s Brief, 7 the Office of the Solicitor General presented the following statement of facts:

At around 7:00 p.m. of July 14, 1993, in Barangay Manlucugan, Vinzons, Camarines Norte, Anchito

Nano and Marianito Rafael passed by appellant’s house and asked for a drink from appellant’s wife,

Emily Mendoza. Anchito began talking with Emily and they were about four arms-length from

Marianito when appellant suddenly appeared. Appellant hacked Anchito on the nape, which

prompted Marianito to flee out of fear for his life. (TSN, March 9, 1993, pp. 10 -14).

Brgy. Kagawad Pedro Saman, together with Ernesto Cribe and Trinidad delos Santos, arrived late r

at the scene of the crime. Kagawad Saman discovered Anchito in a kneeling position already dead.

He also found (3) three hack wounds on the nape and two (2) hack wounds at the back of Anchito’s

body (TSN, March 10, 1997, pp. 7 and 18).

At around 9:00 p.m. of that day, Trinidad delos Santos reported the hacking incident to the sub -

station of Aguit-it, Vinzons. SPO2 Silverio Rafael proceeded to the crime scene and saw Anchito’s

body still in a kneeling position with hackwounds at the back of the neck and body (TSN, May

31,1994, p. 5).

SPO4 Rafael asked the people present who was the perpetrator of the crime. The Barangay officials

led by Kgwd. Saman and Kgwd. Cribe informed Rafael that the perpetrator was appellant Efren

Mendoza. SPO4 Rafael later observed that the appellant’s house was in total disarray and he

surmised that things might have been taken in a hurry. He also noted that there was no weapon

anywhere near the victim’s body (Ibid., pp. 12-14 and 17).

Later that night, appellant surrendered to Senior Police Officer Leonardo Almadrones who promptly

turned him over to Chief Investigator Joel Guinto for the requisite investigation. During investigation,

appellant claimed that Anchito ransacked his house and hacked his seven (7) year old son Ernie

Mendoza (TSN, July 1, 1994, p. 5).

Two days later, appellant’s wife and son went to the Vinzon’s police station to blotter Ernie

Mendoza’s wound. Investigator Guinto interviewed Ernie Mendoza and concluded that Ernie’s

wound was made by somebody other than the victim since the said wound was not deep enough.

Also, when he questioned the child about the wound, the latter answered that when he woke up, he

already had a wound. Investigator Guinto later filed the present charge against appellant after the

victim’s common-law wife brought several witnesses who each executed their corresponding sworn

affidavits. (ibid., pp. 7 & 11). 8

The Version of the Defense

The defense presented six witnesses: Appellant Efren Mendoza, his wife Emily and his son Ernie;

Bayani Aguilar; Dr. Gaudencio Albano and Carmen Herico. In his Brief, 9 appellant summarized the

defense witnesses’ testimonies as follows:

EMILY MENDOZA, wife, of appellant, testified that at around 7:00 o’ clock in the evening, the victim

Anchito Nano and his companion Marianito Rafael arrived at their house and upon arrival, Anchito

Nano destroyed the two (2) windows of their house. She saw afterwards that her son, Ernie

Mendoza, was hacked by Anchito Nano while the former was peeping thru the destroyed window.

She shouted for help and appellant, her husband, responded to her call and saw Anchito Nano who

was about to attack her husband, but was hacked first by the latter. Marianito Rafael who was just

watching subsequently fled from the place of the incident. She brought her son first to the faith

healer for immediate treatment and the following morning to the Provincial Hospital for medical

treatment. She learned later that her husband went to Vinzons Municipal Hall and surrendered

voluntarily to the police authority on the same day of July 14, 1993. (TSN, December 8, 1994, no. 3-

11).

EFREN MENDOZA, accused-appellant, testified that on July 14, 1993, at around 7:30 in [the]

evening, he was at the comfort room 20 about meters away from their house when he heard his wife

shouting for help. He ran immediately towards the direction of their house and saw Anchito Nano

destroying the lock of their window[;] hence he looked for a piece of wood but found a bolo instead.

He later heard his son shout, “Ama, tinaga ako.” He approached Anchito Nano to prevent him from

entering their house but the latter tried to hack him. He was able to deliver a hacking blow ahead of

the victim on the right side of the neck. Thereafter, he immediately went to the Municipal Hall of

Vinzons and surrendered voluntarily to the police authority (TSN, March 27, 1995, pp. 3 -8).

ERNIE MENDOZA, appellant’s son, testified that on July 14, 1993, at around 7:30 in the evening, he

noticed that somebody was hacking their house, hence, he peeped through the window and saw

Anchito Nano who hacked him on the head, thereby resulting [in] los[s] of consciousness while his

mother [kept] on shouting for help. He was brought first to a quack doctor for immediate treatment

and the following morning, to the provincial hospital where he was treated by Dr. Albano for the head

injury he sustained.

BAYANI AGUILAR, police chief of Vinzons PNP testified that he issued a certification on August 3,

1993 about the voluntary surrender of appellant Efren Mendoza and another certification regarding

one in the report made by Emily Mendoza relative to the hacking of his son by Anchito Nano which

happened on July 14, 1993 at about 7:30 in the evening at their house (TSN, November 7, 1995, pp.

2-4).

DR. GAUDENCIO ALBANO, the attending doctor who treated appellant’s son testified that he

treated Ernie Mendoza who suffered a wound laceration four (4) cm. long at the middle of the head

which could have been caused by a blunt object. (TSN, July 31, 1996, pp. 4 -6).

CARMEN HERICO testified that on July 14, 1993, at around 7:30 in the evening, she heard her

daughter, Emily Mendoza shouting for help, hence she ran towards her daughter’s house and they

met halfway along the road. They proceeded back to her daughter’s house and she saw the fallen

window. She and her daughter, subsequently proceeded to the house of Pedro Saman, a barangay

kagawad and informed the latter about the incident. (TSN, October 22, 1996, pp. 3, 5 -6). 10

Trial Court Ruling

The court a quo rejected appellant’s plea of self-defense, ratiocinating as follows:

To bolster his claim of self-defense, accused Efren Mendoza declared: when he heard the shouts for

help of his wife, immediately he ran towards their house and saw the victim destroying their house.

There, he heard his son [shout], “Ama, tinaga ako.” He immediately approached the victim in order to

prevent him from entering the house. He delivered the first blow by hacking the victim, hitting the

victim at the right side of the neck, alleging that the victim, when they were facing each other, hacked

the accused first.

Indeed, a man’s house is his castle. He has the right to protect it. He may repel force by force in

defense of person, habitation or property against anyone who manifestly intends or endeavors by

violence or surprise to commit a felony. But these circumstances surrounding the incident negates

the allegations of the accused’s self-defense. First, there is an eyewitness on the part of the

prosecution, that the accused suddenly attacked and hacked the victim outside the house (tsn.,

March 9, 1994, pp. 12-13). Secondly, the physical evidence of the number, location and severity of

the [hack] and incised wounds found on the body of the victim affirmed by the medical findings

contained in the autopsy report that all the hack wounds [came] from the back of the victim’s body

(tsn., Feb. 4, 1994, p. 7), and the pictures presented in court (Exhibits “C” to “C -40″) all indicate that

the victim was hacked from behind. Clearly, accused’s act was no longer one of self -preservation,

but a determined effort to kill his victim. 11

Holding that appellant’s claim was debunked by the prosecution witnesses’ testimonies which were

more credible, the trial court explained:

Kagawad Pedro Saman was among the first persons who saw the vicinity of the incident. He noticed

that the victim was not carrying any weapon or knife or a piece of wood and the house was in good

condition (tsn, March 10, 1994, p. 14). It was corroborated by SPO4 Silverio Rafael that there was

indeed no weapon within the vicinity where the corpse of the victim was found (tsn, May 31, 1994, p.

17) The allegations of the accused that the victim was the aggressor who hacked him first is contrary

to human nature. There was no altercation, warning or even a challenge that [would] enable the

victim to be aggressor. The aggression must be real, or at least, imminent and not merely imaginary.

The aggressor’s intent must be ostensibly revealed by his hostile attitude and other external acts

constituting a real, material, unlawful aggression. A threat, even if made with a weapon or the belief

that a person was about to be attacked, is not sufficient. It is necessary that the intent be ostensibly

revealed by an act of aggression or by some external acts showing the commencement of actu al,

material, unlawful aggression. This court finds that [since] the accused was not in imminent danger

of death or great bodily harm, an attempt to defend himself by means which appeared unreasonable

by using a long bolo is unjustifiable. Hence, the self-defense foisted by the accused is not well-

founded, but an alibi to exonerate him from the offense he committed. 12

The Alleged Errors

In his Brief, appellant assails (1) the trial court’s rejection of his plea of defense of relative and (2) its

characterization of the crime committed. Thus, he submits:

I

THE TRIAL COURT ERRED IN NOT UPHOLDING THE THEORY OF DEFENSE OF RELATIVE

ESPOUSED BY THE ACCUSED-APPELLANT DESPITE CORROBORATIVE EVIDENCE

SUPPORTING THE SAME.

II

THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME OF

MURDER DESPITE THE ABSENCE OF QUALIFYING CIRCUMSTANCES OF TREACHERY AND

EVIDENT PREMEDITATION AS ALLEGED IN THE INFORMATION. 13

The Court’s Ruling

The appeal is partly meritorious. The mitigating circumstance of voluntary surrender should be

appreciated in appellant’s favor.

First Issue:

Self-Defense and Defense of a Relative

The appellant admits to having hacked Anchito Nano, but vigorously insists that he did so to defend

himself, his family and his home.

Mendoza recounts that on that fateful night, he was relieving himself in their comfort room situated

about twenty meters outside their house, when he heard his wife’s frantic pleas for help. He

immediately rushed to their house and saw Nano destroying their windows. The former looked for

something with which to arm himself and found a bolo. He recalls that at this point, he heard his son

shout, “Ama, tinaga ako!” Thereafter, he approached Nano to prevent him from entering the house.

The latter allegedly faced him and was about to strike him with a bolo, but the former was able to

parry the blow, quickly retaliate and hit him on the neck. 14

Requisites of Self-Defense and

Defense of Relative

Because the accused raises self-defense and defense of a relative, it is incumbent upon him to

prove the presence of the following requisites: unlawful aggression on the part of the victim, lack of

sufficient provocation on his part, and reasonable necessity of the means he used to repel the

aggression. 15 It is settled that the accused who invokes self-defense or defense of a relative must

present clear and convincing evidence. Such person cannot rely on the weakness of the

prosecution, for even if it is weak, it cannot be disbelieved because the former has admitted the

killing. 16

Unlawful Aggression

Not Proven

We find that the appellant was not able to prove the all-important first requisite — unlawful

aggression on the part of Anchito Nano. Mendoza contends that it was the latter who started the

aggression by acting in a manner that was threatening and dangerous to the former and his family,

wreaking havoc on his house and in the process, injuring his seven-year-old son. Appellant likewise

avers that Nano was about to strike him when the former, acting instinctively, delivered the fatal

blows to the latter.

Emily and Ernie Mendoza, appellant’s wife and son, corroborated this assertion. They testified that

the deceased had started the fracas and caused the wound on Ernie’s head. To further prove this

claim, the defense presented Dr. Gaudencio Albano, Ernie’s attending physician, who testified that

the boy had suffered a laceration, four centimeters long at the middle of the head, which could have

been caused by a blunt object. 17

Despite this corroboration, however, several circumstances belie appellant’s claim of self-defense

and defense of a relative. First, investigators found the deceased in a kneeling position with five

wounds — three on the nape, and two at the back. Thus, the nature and the location of such wounds

debunked appellant’s claim that Nano was about to attack him.

Second, the bolo which Nano had allegedly used in his attack was not found within the vicinity of the

crime scene and was not presented in court. This point was established by SPO4 Silverio Rafael’s

testimony 18 and the photograph 19 depicting the actual crime scene.

Third, granting that Ernie Mendoza was injured, the appellant and his witnesses were nor able to

prove adequately that such injury was caused by Nano, because there were inconsistencies and

improbabilities in their testimonies. Ernie claimed that he had lost consciousness after being struck

with a bolo by Nano. 20 However, appellant asserts that he heard his child cry, “Ama, tinaga ako!”

while the former was about to subdue the assailant. Moreover, appellant admits that he did not see

Nano hit his son.

Likewise, the testimonies of Carmen Herico (Emily’s mother) and Pedro Saman regarding the

circumstances after the hacking incident negated Emily’s claim that she had rushed her wounded

son to the faith healer. Herico went to her daughter’s house after hearing the latter’s cries for help,

but the former did not see anything except a fallen window. 21 Surely, she would have noticed if her

grandchild was injured. Pedro Saman, the baranggay kagawad summoned by Herico, also testified

that appellant’s children were in the house when he arrived at the crime scene, 22 but he did not

mention anything about an injured child.

In any event, the trial court disbelieved the testimonies of the defense witnesses. The well -settled

rule is that the trial court’s findings on the credibility of witnesses and their testimonies are accorded

great weight and respect, in the absence of any clear showing that some facts or circumstances of

weight or substance which could have affected the result of the case have been overlooked,

misunderstood or misapplied. 23 Appellant failed to present any reason why this Court should reverse

or modify the court a quo‘s ruling.

In all, the totality of the evidence presented by the appellant was not sufficient to prove that it was

Nano who had started the fracas, and that the former was just acting to defend himself, his family

and his home.

Second Issue:

Crime and Punishment

We agree with the trial court that the killing of Anchito Nano was qualified by t reachery, as alleged in

the Information. The essence of treachery is the sudden and unexpected attack, without the slightest

provocation on the part of the person attacked. 24 Treachery exists when the offender commits any of

the crimes against persons, employing means, methods or forms in the execution thereof which tend

directly and especially to insure its execution, without risk arising from the defense which the

offended party might make. 25

In the present case, the victim’s lack of awareness of the attack can be gleaned from the nature, the

number and the location of his wounds. Furthermore, the testimony of Marianito Rafael, against

whom no ill motive was imputed by the appellant, likewise established this fact. The former testified:

Q You mean to say that you were present when he was hacked?

A Yes, sir.

Q In what place was he hacked?

xxx xxx xxx

A Near the house of Efren Mendoza.

Q Why were you there? . . .

A Because I asked for water from Emily Mendoza.

Q And Anchito Nano was also there?

xxx xxx xxx

A We were together.

xxx xxx xxx

Q You mean to say that after you had a drink, Efren Mendoza came?

A He came out suddenly.

Q . . . [W]here did he come from?

A He came from outside of the house.

Q What did [he] do upon arriving, if any, this Efren Mendoza?

A He suddenly hacked.

Q Who?

A Anchito Nano.

xxx xxx xxx

Q How many times was Anchito Nano hacked by Efren Mendoza, if you know?

A I only saw once, I ran away after seeing the first hack. 28

Voluntary Surrender

Appellant argues that the mitigating circumstance of voluntary surrender should be appreciated in

his favor, because he immediately went to the Municipal Hall and surrendered to the police on the

night of the incident.

We agree, To establish this mitigating circumstance, the following three requisites must be shown:

(a) the offender has not been actually arrested; (2) the offender surrenders himself to a person in

authority or the latter’s agent; and (c) the surrender is voluntary. 27 The defense must show intent to

surrender unconditionally to the authorities, either because of an acknowledgment of

guilt or because of a wish to spare them the trouble and the expense concomitant to the search and

the capture of the accused. 28

In this case, all these requisites were proven. Appellant’s assertion that he surrendered was

corroborated by Chief Inspector Bayani Aguilar, Vinzons chief of police, who issued a Certification

that “one Efren Mendoza . . . voluntarily surrendered [to] this station, including his bolo . . . which

was used to hack 3 times a certain Yoyoy Nano . . .” 29 Contrary to the submission of the solicitor

general, 30 the surrender of appellant was unconditional. He readily admitted that he had hacked the

victim and subsequently put himself under police custody.

Furthermore, we hold that the trial court erred in ruling that voluntary surrender was “offset by the

aggravating circumstance of treachery.” 31 The court a quo failed to appreciate the distinction

between a generic aggravating circumstance and a qualifying one.

A qualifying circumstance changes the nature of the crime. A generic aggravating circumstance, on

the other hand, does not affect the designation of the crime; it merely provides for the imposition of

the prescribed penalty in its maximum period. Thus, while a generic aggravating circumstance may

be offset by a mitigating circumstance, a qualifying circumstance may not. 32

Treachery in the present case is a qualifying, not a generic aggravating circumstance. Its presence

served to characterize the killing as murder; it cannot at the same time be considered as a generic

aggravating circumstance to warrant the imposition of the maximum penalty. Thus, it cannot offset

voluntary surrender.

The Proper Penalty

When the crime was committed on July 14, 1993, the penalty for murder was reclusion temporal, in

its maximum period, to death. 33 At the time, however, RA 7659 which reimposed the death penalty

was not yet in effect. In any event, the presence of the mitigating circumstance of voluntary

surrender impels the imposition of the minimum period of the applicable penalty, 34 reclusion

temporal (maximum). Applying the Indeterminate Sentence Law, 35 appellant should be sentenced

to prision mayor in its maximum period to reclusion temporal also in its maximum period.

Civil Indemnity

Citing People v. Victor, 36 the solicitor general argues that the civil indemnity should be raised from

P50,000 to P75,000. This is erroneous. In the said case, the Court held that “starting with the case at

bar, if the crime of rape is committed or effectively qualified by any of the circumstances under which

the death penalty is authorized by the present amended law, the Indemnity for the victim shall be in

the increased amount of not less than P75,000.00.” Obviously, that ruling, which involved rape and

imposed the death penalty, cannot apply to the present case. Hence, consistent with current

jurisprudence, 37 we affirm the award of P50,000 as indemnity ex delicto.

Likewise, we affirm the award of moral damages in the sum of P30,000 for the anguish and th e

wounded feelings suffered by the victim’s heirs, which were duly proven.

WHEREFORE, the assailed Decision of the Regional Trial Court is AFFIRMED with the modification

that appellant is hereby sentenced to an indeterminate penalty of 10 years and 1 day o f prision

mayor (maximum) to 17 years, 4 months and 1 day of reclusion temporal (maximum). All other

awards are AFFIRMED. No pronouncement as to costs.

SO ORDERED.

Melo, Vitug, Purisima and Gonzaga-Reyes, JJ., concur.

Qualifying Circumstances cannot offset Ordinary Mitigating Circumstances

On July 14, 1993 about 7:30 pm in the Municipality of Vinzons, Camarines Norte, Mendoza

hacked Anchito Nano with a bolo which led to the instant death of the accused. The trial court

found the accused acted with evident premeditation hence convicted him of the crime murder

which is punishable by reclusion perpetua. Prior to trial he voluntarily surrendered but it was

not appreciated as a mitigating circumstance.

ISSUE: Whether or not the trial court erred in ruling that the mitigating circumstance of

voluntary surrendered was offset by the aggravating circumstance of treachery.

HELD: Treachery is a qualifying circumstance in the present case therefore it cannot offset

the mitigating circumstance of voluntary surrender. Therefore, pursuant to the Indeterminate

Sentence Law, the accused should be sentenced to prision mayor in its maximum period to

reclusion temporal in its minimum period.

G.R. No. L-10016, People v. Aragon,

100 Phil. 1033

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

February 28, 1957

G.R. No. L-10016

THE PEOPLE OF THE PHILIPPINES, plaintiff-appelle,

vs.

PROCESO S. ARAGON, defendant-appellant.

Office of the Solicitor General Ambrosio Padilla and Solicitor Adolfo Brillantes for

appellee.

Prospero V. Manuel, Fernando Moncada and Antonio Abad Tornis for defendant and

appellant.

LABRADOR, J.:

Appeal from a judgment of the Court of First Instance of Cebu finding appellant

guilty of bigamy. The facts are not disputed and, as found by the trial court, are as

follows:

On September 28, 1925, the accused, under the name of Proceso Rosima, contracted

marriage with a certain Maria Gorrea in the Philippine Independent Church in Cebu

(Exhibits "1" and "1-A"). While his marriage with Maria Gorrea was subsisting, the

accused under the name of Proceso Aragon, contracted a canonical marriage with

Maria Faicol on August 27, 1934, in the Santa Teresita Church in Iloilo City.

The sponsors of the accused and Maria Faicol were Eulogio Giroy, who was then an

employee of the Office of the Municipal Treasurer of Iloilo, and a certain Emilio

Tomesa, a clerk in the said office (Exhibit "A" and testimonies of Eulogio Giroy and

complainant Maria Faicol). After the said marriage, the accused and Maria Faicol

established residence in Iloilo. As the accused was then a traveling salesman, he

commuted between Iloilo where he maintained Maria Faicol, and Cebu where he

maintained his first wife, Maria Gorrea died in Cebu City on August 5, 1939 (Exhibit

"2"). After Maria Gorrea's death, and seeing that the coast was dear in Cebu, the

accused brought Maria Faicol to Cebu City in 1940, where she worked as a teacher-

nurse.

It would seem that the accused and Maria Faicol did not live a happy marital life in

Cebu, for it appears that in 1949 and 1950, Maria Faicol suffered injuries to her eyes

because of physical maltreatment in the hands of the accused. On January 22, 1953,

the accused sent Maria Faicol to Iloilo, allegedly for the purpose of undergoing

treatment of her eyesight. During her absence, the accused contracted a third marriage

with a certain Jesusa C. Maglasang on October 3, 1953, in Sibonga, Cebu. (See

Exhibits "C", "D", "E" and "F")

The accused admitted having contracted marriage with Jesusa C. Maglasangin

Sibonga, Cebu, on October 3, 1953, Although the accused made an attempt to deny

his previous marriage with Maria Faicol, the Court, however, believes that the attempt

is futile for the fact of the said second marriage was fully established not only by the

certificate of the said marriage, but also by the testimony of Maria Faicol and of

Eulogio Giroy, one of the sponsors of the wedding, and the identification of the

accused made by Maria Faicol. (See Exhibits "A" and "B"; t.s.n. pp. 32-33, 40, 41,

hearing of April 27, 1954).

The Court of First Instance of Cebu held that even in the absence of an express

provision in Act No. 3613 authorizing the filing of an action for judicial declaration of

nullity of a marriage void ab initio, defendant could not legally contract marriage with

Jesusa C. Maglasang without the dissolution of his marriage to Maria Faicol, either by

the death of the latter or by the judicial declaration of the nullity of such marriage, at

the instance of the latter. Authorities given for this ruling are 5 Viada, 5th edition,

651; 35 American Jurisprudence, Marriage, Sec. 46, p. 212; Bickford vs. Bickford, 74

N. H. 466, 69 A. 579.

Appellant in this Court relies on the case of People vs. Mendoza, (95 Phil., 845; 50

Off. Gaz., [10] 4767). In this case the majority of this Court declared:

The statutory provision (section 29 of the Marriage Law or Act No. 3613) plainly

makes a subsequent marriage contracted by any person during the lifetime of his first

spouse illegal and void from its performance, and no judicial decree is necessary to

establish its invalidity, as distinguished from mere annullable marriages. There is here

no pretense that appellant's second marriage with Olga Lema was contracted in the

belief that the first spouse, Jovita de Asis, had been absent for seven consecutive years

or generally considered as dead, so as to render said marriage valid until declared null

and void by a subsequent court.

We are of the very weighty reasons by Justice Alex Reyes in the dissent in the case

above-quoted But this weighty reasons notwithstanding, the very fundamental

principle of strict construction of penal laws in favor of the accused, which principle

we may not ignore, seems to justify our stand in the above-cited case of People vs.

Mendoza. Our Revised Penal Code is of recent enactment and had the rule enunciated

in Spain and in America requiring judicial declaration of nullity of ab initio void

marriages been within the contemplation of the legislature, an express provision to

that effect would or should have been inserted in the law. In its absence, we are bound

by said rule of strict interpretation already adverted to.

It is to be noted that the action was instituted upon complaint of the second wife,

whose marriage with the appellant was not renewed after the death of the first wife

and before the third marriage was entered into. Hence, the last marriage was a valid

one and appellant's prosecution for contracting this marriage can not prosper.

For the foregoing considerations, the judgment appealed from is hereby reversed and

the defendant-appellant acquitted, with costs de oficio, without prejudice to his

prosecution for having contracted the second bigamous marriage. So ordered.

Paras, C. J., Bengzon, Bautista Angelo, Reyes, J. B. L., Endencia, and Felix, JJ.,

concur.

Separate Opinions

REYES, A.J., dissenting:

I dissent.

Dissenting in the case of People vs. Mendoza, replied on by the majority, I there said:

Article 349 of the Revised Penal Code punishes with prision mayor "any person who

shall contract a second or subsequent marriage before the former marriage has been

legally dissolved."

Though the logician may say that there were the former marriage was void there

would be nothing to dissolve, still it is not for the spouses to judge whether that

marriage was void or not. That judgment is reserved to the courts. As Viada says, 'La

satidad e importancia del matrimonio no permite que los casados juzguen por si

mosmos de su nulidad; esta ha de someterse [precisamente al juicio del

Tribunalcompetente, y cuando este declare la nulidad del matrimonio, y solo entonces,

se tendra por nulo; mientras no exista esta declaracion, la presuncion esta siempre a

favor de la validez del matrimonio, yde consiguiente, el que contrae otro segundo

antes de dicha declaracio de nulidad, no puede menos de incurrir la pena de este

articulo. (3 Viada, Codigo Penal, p. 275.)

"This is a sound opinion," says Mr. Justice Tuason in the case of People vs. Jose

Cotas, (CA), 40 Off. Gaz. 3145, "and is in line with the well-known rule established

in cases of adultery, that "until by competent authority in a final judgment the

marriage contract is set aside, the offense to the vows taken and the attack on the

family exists."

I may add that the construction placed by the majority upon the law penalizing

bigamy would frustrate the legislative intent rather than give effect thereto.

Padilla and Montemayor, JJ., concur.

G.R. No. L-13553, De Ocampo v.

Florenciano, 107 Phil. 35 Republic of the Philippines

SUPREME COURT

Manila

EN BANC

February 23, 1960

G.R. No. L-13553

JOSE DE OCAMPO, petitioner,

vs.

SERAFINA FLORENCIANO, respondent.

Joselito J. Coloma for petitioner.

BENGZON, J.:

Action for legal separation by Jose de Ocampo against his wife Serafina, on the

ground of adultery. The court of first instance of Nueva Ecija dismissed it. The Court

of Appeals affirmed, holding there was confession of judgment, plus condonation or

consent to the adultery and prescription.

We granted certiorari to consider the application of articles 100 and 101 of the New

Civil Code, which for convenience are quoted herewith:

ART. 100.—The legal separation may be claimed only by the innocent spouse,

provided there has been no condonation of or consent to the adultery or concubinage.

Where both spouses are offenders, a legal separation cannot be claimed by either of

them. Collusion between the parties to obtain legal separation shall cause the

dismissal of the petition.

ART. 101.—No decree of legal separation shall be promulgated upon a stipulation of

facts or by confession of judgment.

In case of non-appearance of the defendant, the court shall order the prosecuting

attorney to inquire whether or not a collusion between the parties exists. If there is no

collusion, the prosecuting attorney shall intervene for the State in order to take care

that the evidence for the plaintiff is not fabricated.

The record shows that on July 5, 1955, the complaint for legal separation was filed.

As amended, it described their marriage performed in 1938, and the commission of

adultery by Serafina, in March 1951 with Jose Arcalas, and in June 1955 with Nelson

Orzame.

Because the defendant made no answer, the court defaulted her, and pursuant to Art.

101 above, directed the provincial fiscal to investigate whether or not collusion

existed between the parties. The fiscal examined the defendant under oath, and then

reported to the Court that there was no collusion. The plaintiff presented his evidence

consisting of the testimony of Vicente Medina, Ernesto de Ocampo, Cesar Enriquez,

Mateo Damo, Jose de Ocampo and Capt. Serafin Gubat.

According to the Court of Appeals, the evidence thus presented shows that "plaintiff

and defendant were married in April 5, 1938 by a religious ceremony in Guimba,

Nueva Ecija, and had lived thereafter as husband and wife. They begot several

children who are now living with plaintiff. In March, 1951, plaintiff discovered on

several occasions that his wife was betraying his trust by maintaining illicit relations

with one Jose Arcalas. Having found the defendant carrying marital relations with

another man plaintiff sent her to Manila in June 1951 to study beauty culture, where

she stayed for one year. Again, plaintiff discovered that while in the said city

defendant was going out with several other men, aside from Jose Arcalas. Towards

the end of June, 1952, when defendant had finished studying her course, she left

plaintiff and since then they had lived separately.

"On June 18, 1955, plaintiff surprised his wife in the act of having illicit relations with

another man by the name of Nelson Orzame. Plaintiff signified his intention of filing a

petition for legal separation, to which defendant manifested her conformity provided

she is not charged with adultery in a criminal action. Accordingly, plaintiff filed on

July 5, 1955, a petition for legal separation."

The Court of Appeals held that the husband's right to legal separation on account of

the defendant's adultery with Jose Arcalas had prescribed, because his action was not

filed within one year from March 1951 when plaintiff discovered her infidelity. (Art.

102, New Civil Code) We must agree with the Court of Appeals on this point. [[1]]

As to the adultery with Nelson Orzame, the appellate court found that in the night of

June 18, 1955, the husband upon discovering the illicit connection, expressed his wish

to file a petition for legal separation and defendant readily agreed to such filing. And

when she was questioned by the Fiscal upon orders of the court, she reiterated her

conformity to the legal separation even as she admitted having had sexual relations

with Nelson Orzame. Interpreting these facts virtually to mean a confession of

judgment the Appellate Court declared that under Art. 101, legal separation could not

be decreed.

As we understand the article, it does not exclude, as evidence, any admission or

confession made by the defendant outside of the court. It merely prohibits a decree of

separation upon a confession of judgment. Confession of judgment usually happens

when the defendant appears in court and confesses the right of plaintiff to judgment or

files a pleading expressly agreeing to the plaintiff's demand. [[2]] This is not occur.

Yet, even supposing that the above statement of defendant constituted practically a

confession of judgment, inasmuch as there is evidence of the

adultery independently of such statement, the decree may and should be granted, since

it would not be based on her confession, but upon evidence presented by the plaintiff.

What the law prohibits is a judgment based exclusively or mainly on defendant's

confession. If a confession defeats the action ipso facto, any defendant who opposes

the separation will immediately confess judgment, purposely to prevent it.

The mere circumstance that defendants told the Fiscal that she "like also" to be legally

separated from her husband, is no obstacle to the successful prosecution of the action.

When she refused to answer the complaint, she indicated her willingness to be

separated. Yet, the law does not order the dismissal. Allowing the proceeding to

continue, it takes precautions against collusion, which implies more than consent or

lack of opposition to the agreement.

Needless to say, when the court is informed that defendant equally desires the

separation and admitted the commission of the offense, it should be doubly careful

lest a collusion exists. (The Court of Appeals did not find collusion.)

Collusion in divorce or legal separation means the agreement.

. . . between husband and wife for one of them to commit, or to appear to commit, or

to be represented in court as having committed, a matrimonial offense, or to suppress

evidence of a valid defense, for the purpose of enabling the other to obtain a divorce.

This agreement, if not express, may be implied from the acts of the parties. It is a

ground for denying the divorce. (Griffiths vs. Griffiths, 69 N. J. Eq. 689 60 Atl. 1099;

Sandoz vs. Sandoz, 107 Ore. 282, 214 Pas. 590.)

In this case, there would be collusion if the parties had arranged to make it appear that

a matrimonial offense had been committed although it was not, or if the parties had

connived to bring about a legal separation even in the absence of grounds therefor.

Here, the offense of adultery had really taking place, according to the evidence. The

defendant could not have falsely told the adulterous acts to the Fiscal, because her

story might send her to jail the moment her husband requests the Fiscal to prosecute.

She could not have practiced deception at such a personal risk.

In this connection, it has been held that collusion may not be inferred from the mere

fact that the guilty party confesses to the offense and thus enables the other party to

procure evidence necessary to prove it. (Williams vs. Williams, [N. Y.] 40 N. E. (2d)

1017; Rosenweig vs. Rosenweig, 246 N. Y. Suppl. 231; Conyers, vs. Conyers, 224 S.

W. [2d] 688.)

And proof that the defendant desires the divorce and makes no defense, is not by itself

collusion. (Pohlman vs. Pohlman, [N. J.] 46 Atl. Rep. 658.)

We do not think plaintiff's failure actively to search for defendant and take her home

(after the latter had left him in 1952) constituted condonation or consent to her

adulterous relations with Orzame. It will be remembered that she "left" him after

having sinned with Arcalas and after he had discovered her dates with other men.

Consequently, it was not his duty to search for her to bring her home. Hers was the

obligation to return.

Two decisions[[3]] are cited wherein from apparently similar circumstances, this Court

inferred the husband's consent to or condonation of his wife's misconduct. However,

upon careful examination, a vital difference will be found: in both instances, the

husband had abandoned his wife; here it was the wife who "left" her husband.

Wherefore, finding no obstacles to the aggrieved husband's petition we hereby reverse

the appealed decision and decree a legal separation between these spouse, all the

consequent effects. Costs of all instances against Serafina Florenciano. So ordered.

Paras, C. J., Padilla, Montemayor, Labrador, Concepcion, Reyes, J. B. L., Endencia,

Barrera, and Gutierrez David, JJ., concur.

G.R. No. 1056, Benedicto v. De La

Rama, 3 Phil. 34 Republic of the Philippines

SUPREME COURT

Manila

EN BANC

December 8, 1903

G.R. No. 1056

AGUEDA BENEDICTO, plaintiff-appellee,

vs.

ESTEBAN DE LA RAMA, defendant-appellant.

Jovito Yusay and Ledesma and Sumulong for appellant.

Aylett R. Cotton and Lionel D. Hargis for appellee.

WILLARD, J.:

This is an action for divorce. The complaint, which was filed on October 29, 1901,

alleged, as the grounds therefor, abandonment and adultery. The answer charged the

plaintiff with adultery, denied the adultery imputed to the defendant, and asked for a

divorce. Judgment was rendered on July 5, 1902, in favor of the plaintiff, granting her

divorce and 81,042.76 pesos as her share of the conjugal property. The defendant

excepted to the judgment and moved for a new trial on the ground that the facts were

not justified by the evidence. This motion was denied, and the defendant excepted.

The record before us contains all the evidence received at the trial.

(1) The first question which we find it necessary to decide is whether or not the Courts

of First Instance now have jurisdiction of divorce cases, and if they have, on what law

it is based.

The court below assumed that the provisions of the Civil Code relating to divorce,

contained in title 4 of book 1, are still in force. In this we think there was error.

By the roval decree of July 31, 1889, the Civil Code as it existed in the Peninsula was

extended to the Philippines. The "cumplase" of the governor-general was affixed to

this decree on September 12, 1889. The Code was published in the Gaceta de

Manila on November 17, 1889, and took effect as a law on December 8, 1889. On

December 31, 1889, the following order was published in the Gaceta de Manila:

GENERAL GOVERNMENT OF THE PHILIPPINES,

SECRETARY'S OFFICE, BUREAU NO. 2,

Manila, December 29, 1889.

By direction of Her Majesty's Government, until further order, titles 4 and 12 of the

Civil Code, extended to these Islands by royal decree of July 31 last, published in the

Gazette of this city of the 17th of November last, are suspended in this Archipelago.

The proper authorities will issue the necessary orders to the end that in lieu of the two

titles so suspended the former law may continue in force.

This order will be communicated and published.

WEYLER.

This order purports to have been issued by the governor-general by order of the

Government of Madrid, and although it is stated in the Compilacion Legislativa de

Ultramar (vol. 14, p. 2740) that no decree of this kind was ever published in

the Gaceta de Madrid and that a copy thereof could not be obtained in any

governmental office, yet we can not assume that none was ever issued.

Sanchez Roman says: "By reason of the lack of that preparation which was proper in a

matter of such great importance, it seems, according to reports which merit a certain

amount of credit (for no order has ever been published which reveals it), that the

Government of the Philippines, after taking the opinion of the audiencia of Manila,

consulted the colonial office concerning the suspension of titles 4 and 12 of book 1.

This opinion was asked in respect to title 4 on account of certain class influences

which were strongly opposed to the application of the formula of marriage which gave

some slight intervention to the authorities of the State through the municipal judge or

his subtitutes in the celebration of the canonical marriage. As to title 12, the opinion

was asked by reason of the fact that there was no such officer has municipal judge

who could take charge of the civil registry." (2 Derecho Civil, p. 64.)

Moreover, the power of the governor-general, without such order to suspend the

operation of the Code, was well settled. A royal order so stating was issued in Madrid

on September 19, 1876, and with the cumplase of the governor-general published in

theGaceta de Manila on November 15, 1876.

It was suggested at the argument that this order of the suspension was inoperative

because it did not mention the book of the Code in which the suspended titles 4 and

12 were to be found. The Civil Code contains four books. All of them except the third

contain a title numbered 4, and the first and fourth contain a title numbered 12. Title 4

of book 2 deals with rights of property in water and mines and with intelectual

property. Title 4 of book 4 relates to the contract of purchased and sale, and title 12 to

insurance and other contracts of the class. There is no such intimate relation between

these 2 titles of this book has between titles 4 and 12 of book 1, the one relating as it

does to marriage and divorce and the other to the civil registry. The history of the Law

of Civil Marriage of 1870 is well known. As a consequence of the religious liberty

proclaimed in the constitution of 1869 the whole of the law was in force in the

Peninsula. But that basis was wanting in these Islands, and prior to the promulgation

of the Civil Code in 1889 no part of the law was in force here, except articles 44 to 78,

which were promulgated in 1883. Of these articles those numbered 44 to 55 are found

in title 4, but they relate merely to the rights and obligations of husband and wife and

do not touch the forms of marriage nor the subject of divorce. If these provisions of

the Civil Code on these subjects could be suspended by the certain class influences

mentioned by Sanchez Roman, the only marriages in the Islands would be canonical

and the only courts competent to declare a divorce would be ecclesiastical. There can

be no doubt but that the order of suspension refers to titles 4 and 12 of book 1, and it

has always been so understood. It follows that articles 42 to 107 to the Civil Code

were not in force here as law on August 13, 1898, and therefore are not now.

While General Orders, No. 68, promulgated by the Military Government on

December 18, 1899, treats of marriage and nullity of marriage, it says nothing about

divorce. To find the law application to this subject resort must be had to the legislation

relating thereto in force in the Islands prior to 1889. It seems necessary to ascertain in

the first place what laws on the subject were in force in the Peninsula and afterwards

if any of them had been extended to the Philippines.

The canon law, which the ecclesiastical courts administered both in Spain and here,

had not as such any binding force outside of the church. However, any part of the

canon law which by proper action of the civil authorities had become a civil law stood

upon the same footing as any other law of Spain. This happened in the case of the

decree of the council of Trent. That those decrees have in Spain the force of a civil

law is well settled. "The decrees of the council of Trent have in Spain force of law" (1

Practica General Florense, Zuniga, 260). In the preface to the Law of Civil Marriage

of 1870, its author, Montero Rios, says: "Philip II accepting as law of the State by

royal cedula dated in Madrid the 12th of July, 1554, the decrees of the council of

Trent," etc. This royal cedula of Philip II was brought forward into the Novisima

Recopilacion and is now Law 13, title 1, book 1, thereof. The same thing is declared

in article 75 of the present Civil Code, which is as follows: "The requisites, form, and

solemnities for the celebration of canonical marriages shall be governed by the

provisions of the Catholic Church and of the holy council of Trent, accepted as laws

of the Kingdom." It may be doubted, notwithstanding, if these decrees, even if

considered as extended to the Philippines and in force here, furnish any aid in the

solution of the question. The canonists hold that they do declare adultery to be a

ground for divorce (2 Procedimientos Eclesiasticos, Cadena, p. 211). This is,

however, more by deduction than otherwise. The causes for divorce are nowhere

distinctly stated therein. The seventh canon of the twenty-fourth session (November

11, 1563), relied upon by the ecclesiastical writers, does not say that adultery is a

ground for a separation; it simply says that it is not a ground for a divorce from the

bond of matrimony. The eight canon of the same session, while it declares that the

church may direct the separation of the spouses for many causes, does not state what

those causes are. The laws of the church which do state what these causes are have not

the force of the civil laws.

The Decretal law of December 6, 1868, abolishing in the Peninsula the special

jurisdictions, was extended to the Philippines by a royal order of February 19, 1869,

which was published in the Gaceta de Manila on June 2, 1869. That Decretal Law

contained the following provision:

The ecclesiastical courts shall continue to take cognizance of matrimonial and

eleemosynary causes and of ecclesiastical offenses in accordance with the provisions

of the canon laws. They shall also have jurisdiction over causes of divorce and

annulment of marriage as provided by the holy council of Trent; but incidents with

respect to the deposit of a married woman, alimony, suit money, and other temporal

affairs shall pertain to the ordinary courts.

This did not have the effect of making the canons mentioned therein civil laws. It

simply declared that the church might try the cases referred to according to its own

laws in its own courts and that the State would enforce the decrees of the latter.

It is not necessary, however, to decide this question as to the decrees of the council of

Trent, for the partidas do contain provisions relating to the subject of divorce. Law 1,

title 10, of the fourth partida, defines divorce as follows:

Divortium, in Latin, means, in common speech, separation (departimiento), and is the

means by which the wife is separated from the husband, and the husband from the

wife, on account of some impediment existing between them, when it is properly

proved in court. And whoever separates the parties in any other way, doing it by force,

or contrary to law, will go against that which is said by Jesus Christ, in the Gospel:

"those whom God path joined together, let no man put asunder." But when the

spouses are separated by law, it is not then considered that man separates them, but

the written law, and the impediment existing between them. And divortiotakes its

name from the separation of the wills of man and woman, which are in a contrary

state when separated, to what they were when the parties were united.

Law 2 of the same title is as follows:

Properly speaking there are two forms of separation to which the name of divorce may

be given and two reasons therefor; there are many reasons which bring about the

separation of those who appear to be married but are not so by reason of some

impediment between them. Of these two reasons, one is religion and the other the sin

of fornication. Religion authorizes divorce on this ground: That if any persons there

be lawfully married, there not existing between them any of the impediments upon

which the marriage might be dissolved, if either of them after they have been carnally

joined should desire to take holy orders and the other should grant permission, the one

desiring to remain in the world promising to live a life of chastity and being so aged

that none can suspect that such spouse will be guilty of the crime of fornication and

the other enter into the order in this manner, a separation results which may properly

be called divorce, but it must be made by order of the bishop or some other of the

prelates of holy church who have authority therefor. Furthermore, if the wife offends

her husband by the crime of fornication or adultery, this is another reason which we

say may properly be a ground for divorce. The accusation is to be brought before the

judge of the holy church and proof made of the fornication or adultery, as set forth in

the preceding title. The same would result should one of the spouses commit spiritual

fornication by becoming a heretic or a Moor or a Jew, if he or she should refuse to

eschew this evil. And the reason why this separation which is authorized by reason of

these two things, either religion or fornication, is properly called divorce, in

distinction from separation which results from other impediments, is that, although it

separates those who were married as stated in this law and the preceding one, the

marriage nevertheless subsists, and thus it is that neither one of them can contract a

second marriage at any time excepting in the case of a separation granted by reason of

adultery, in which case the surviving spouse may remarry after the death of the other.

It will be seen from these laws that the only ground for divorce now of importance

here is adultery.

Law 2, title 9, of the fourth partida, provides in part as follows:

Husband and wife may accuse each other, in another way than those mentioned in the

preceding law; and that is for adultery. And if the accusation be made with a view to

separating the parties from living together, or from having any commerce with each

other, no other person but the spouses themselves can make an accusation for such a

cause, and it ought to be made before the bishop or the ecclesiastical judge (official)

either by the parties themselves or their attorneys. . . . And in all the various ways in

which the husband can accuse the wife, mentioned in these two laws, the wife may in

like manner, according to holy church, accuse him, if she choose; and she ought to be

heard, as he is himself." While Law 2 of title 10 seems to speak only of the adultery of

the wife, this clearly gives the wife the right to accuse the husband of adultery for the

purpose of securing a separation. So does Law 13, title 9, partida 4.

The divorce did not annul the marriage. Law 3, title 2, partida 4, says, among other

things, the following:

Yet, with all this, they may separate, if one of them, commit the sin of adultery, or

join any religious order, with the consent of the other, after they have known each

other carnally. And notwithstanding they separate for one of these causes, no longer to

live together, yet the marriage is not dissolved on that account." Law 4, title

10, partida 4, is to the same effect. Law 7, title 2, partida 4, is in part as follows:

So great is the tie and force of marriage that when legally contracted it can not be

dissolved, notwithstanding one of the parties should turn heretic or Jew or Moor or

should commit adultery. Nevertheless, for any of these causes they may be separated

by a judgment of the church, so as to live no longer together, nor to have any carnal

connection with one another, according to what is said in the title on the clergy, in the

law which begins with the words "otorgandose algunos."

The partidas contain other provisions in regard to the form of the libel (Law 12, title

9,partida 4), and Law 7, title 10, partida 4, confers jurisdiction upon the church in

cases of divorce.

That either spouse has been guilty of adultery is a defense to his or her suit (Law 8,

title 2, partida 4), so is the fact that he has pardoned her (Law 6, title 9, partida 4).

And if, after a divorce has been granted to the husband, he commit adultery, there is a

waiver of the judgment (Law 6, title 10, partida 4).

Were these provisions of the partidas in force in the Islands prior to 1889? The

general rule was that laws of the Peninsula did not rule in the colonies unless they

were expressly extended to them. As to certain laws, this result was, however,

accomplished in another way. An examination of the Laws of the Indies will show

that they are almost without exception of an administrative character. They deal with

the relations of the citizen to the church and to the Government and some of them to

matters of procedure. The laws which treat of the rights of citizens between

themselves are few. This fact leads to the promulgation of the law which appears as

Law 2, title 1, book 2, of the Recopilacion de las Leyes Indias. The last part of Law 1

of that title and said Law 2 are as follows:

And as to all matters not provided for by the laws of this compilation, the laws of the

compilations and the partidas of these Kingdom of Castile shall be followed in the

decision of causes in accordance with the following law. (Law 1.)

We order and command that in all causes, suits, and litigations in which the laws of

this compilation do not provide for the manner of their decision, and no such

provision is found in special enactments passed for the Indies and still unrepealed, or

those which may hereafter be so enacted, that then the laws of this our Kingdom of

Castile shall be followed, in conformity with the law of Toro, both with respect to the

procedure to be followed in such cases, suits, and litigations, and with respect to the

decision of the same on the merits. (Law 2.)

This law of Toro; designating the order in which the different bodies of law should be

applied, is now found in book 3, title 2, Law 4 of the Novisima Recopilacion.

In the royal cedula of Carlos, dated May 18, 1680, declaring the force of this

compilation, the commands of this Law 2 are practically repeated. By the operation of

this law, first enacted in 1530, those laws of the partidas hereinbefore referred to

relating to divorce, upon the discovery and settlement of the Philippines became at

once effective therein. They have remained in force since as civil laws of the state as

distinguished from the laws of the church. It may be added also that upon them the

ecclesiastical courts apparently in part relied in determining cases for divorce pending

before them. They are cited as authorities by the writers upon ecclesiastical law. (3

Procedimientos Eclesiasticos, Salazar and La Fuente, p. 9; Practica Forense,

Rodriguez, pp. 410, 413; 2 Practica General Forense, Zuniga, p. 90; 2 Procedimientos

Eclesiasticos, Cadena, p. 210.)

Being in force on August 13, 1898, they continued in force with other laws of a

similar nature. (Am. Ins. Co. vs. Canter, 1 Pet., 511; proclamation of General Merritt,

August 14, 1898). There is nothing in the case of Hallett vs. Collins (10 How., 175)

which is inconsistent with this result. In fact that case assumes that the law of

the partidas regarding matrimony was in force in Louisiana, this conclusion being

reached, however, without taking into consideration the above-mentioned Law of the

Indies and without making the proper exceptions. (Law 2, title 1, book 2.)

The partidas recognized adultery as a ground for divorce. Therefore, according to the

civil as well as the canonical law in force here on August 13, 1898, the commission of

that offense gave the injured party the right to a divorce. That provision of the

substantive civil law was not repealed by the change of sovereignty. The complete

separation under the American Government of church and state, while it changed the

tribunal in which this right should be enforced, could not affect the right itself. The

fact that the ecclesiastical courts no longer exercise such power is not important. The

jurisdiction formerly possessed by them is now vested in Courts of First Instance, by

virtue of Act No. 136. Section 56, first and fifth paragraphs of that act, provides that

"Courts of First Instance shall have original jurisdiction, first, in all civil actions in

which the subject of litigation is not capable of pecuniary estimation; fifth, . . . and in

all such special cases and proceedings as are not otherwise provided for."

The result is (1) that Courts of First instance have jurisdiction to entertain a suit for

divorce; (2) that the only ground therefor is adultery; (3) that an action on that ground

can be maintained by the husband against the wife, or by the wife against the husband;

and (4) that the decree does not dissolve the marriage bond. The Court of First

Instance of Iloilo, therefore, committed no error in assuming jurisdiction of this case.

(2) A motion for a new trial having been made in the court below on the ground that

the findings of fact contained in the decision were not justified by the evidence, it

becomes necessary to examine that evidence.

The adultery of the defendant was duly proved.

The finding that the plaintiff had not committed adultery is, however, plainly and

manifestly against the weight of the evidence. We arrive at this result from a

consideration chiefly of the admitted facts in the case, the most important of which is

the letter written by the plaintiff to the defendant on March 6, 1899, and found at

pages 168 and 195. This is in itself practically conclusive against her. A portion of

that letter is as follows:

E., I still fell ashamed for the past, although it is seven years since we separated. For

this, then, Esteban, pardon me for pity's sake. Wipe out the past. Remember me for the

love of God. Contemplate our unhappy fate. To you I look to assuage my sorrow. E., I

have heard that you have had some misfortunes lately. I send my sympathy, although I

am unworthy of your presence.

The significant words "I am unworthy of you presence" probably escaped the

attention of the judge below, because he has not quoted them. The contention of the

appellee is that the wrong for which the plaintiff sought pardon was that of having

asked for an allowance. This contention can not for a moment be sustained. A woman

does not ask her husband to blot out the past, to have compassion on her, and, most

important of all, does not say that she is unworthy of his presence simply because she

has asked him for an allowance, something to which, according to her own belief, she

had at the time a perfect legal right. The letter is a confession of guilt.

It is admitted that the plaintiff and defendant had lived happily together from the time

of their marriage in July, 1891, to August, 1892. It is also admitted that then the

defendant suddenly, without any previous warning, took his wife to the house of her

parents, left her there, and never lived with her afterwards. There must have been

some reason for this sudden change. The court below says that it was because the

defendant had tired of his wife. There is nothing in the evidence to support this theory.

In her complaint the plaintiff charges the defendant with having committed adultery

with Gregoria Bermejo in 1892. She produced no evidence to support this allegation

as to the time. No one of the six witnesses for the plaintiff upon this charge fix any

date prior to 1894. The other two charges relate to 1899 and 1901. There is no

evidence in the case from which a judge would be justified in finding that from the

separation in 1892 to some time in 1894 the defendant had been unfaithful to his

marriage vow. And the judge below made no such finding.

Two witnesses, Epifanio Lacson and Doroteo Garcia, who testified as to charge in

connection with Gregoria, speaks of a woman brought by the defendant to Negros in

1892. But an examination of their evidence will show that it is entirely insufficient to

prove any illicit relations between this woman and the defendant. In view of the

evidence which the plaintiff did present in this case, we think it safe to say that if the

conduct of the defendant during the years 1892 and 1893 had furnished any ground

for suspicion the plaintiff would have been able to produce evidence thereof at the

trial. She did not do so. The lack of this evidence destroys the theory of the court

below and of the appellee that the defendant expelled the plaintiff from his house he

was tired of her and desired the company of other women. That theory is entirely

inadequate to explain the sudden termination of their marital relations.

The event is, however, to our minds, correctly explained by the testimony of the

defendant. The separation and the letter written by the plaintiff from which we have

quoted can only be explained on the supposition that this testimony of the defendant is

true. He stated that on his return from an inspection of one of his estates his wife's

maid gave him a letter in the handwriting of his wife and directed to her lover, a

Spanish corporal of the civil guard, named Zabal. She admitted the genuineness of the

letter, fell upon her knees, and implored him to pardon her. That same day he took her

to the home of her parents, told what had occurred, and left her there.

That the testimony in regard to this letter is not a fabrication of recent date is shown

by the evidence of the plaintiff's mother, one of her chief witnesses. The mother

testified that about a year after her daughter was returned to her she heard that the

defendant believed that illicit relations existed between Zabal and the plaintiff on

account of a certain letter. She heard Zabal's name mentioned by a sergeant of police

in 1893 or 1894. This may have been the sergeant of the civil guard who, according to

the testimony of Domingo Jardelesa, was the cause why the latter did not deliver to

the plaintiff a letter intrusted to him for her by Zabal after her separation from her

husband.

The evidence showing the adultery who testified to facts conclusively showing the

adultery is severely criticized by the court below and the counsel for the plaintiff. That

criticism relates in a large degree to the matter of time and dates. If this direct

evidence were the only evidence in the case we should not, perhaps, disturb the

finding of the court. But when it is in its essential points corroborated by the admitted

facts which we have heretofore recited, there is left, in our opinion, no doubt whatever

of the guilt of the plaintiff.

It is said that if the plaintiff is guilty the defendant has condoned the offense. It is not

necessary to determine upon this point where the truth lies for two reasons: (1) the

court below made no finding of fact on the subject; (2) even if it had found that there

was condonation this would not have entitled the plaintiff to a divorce.

By Law 6, title 9, partida 4, the wife can defeat the husband's suit for divorce by

proving that he has pardoned her. But we have found no laws in the partidas which

say that the effect of that pardon would be so far-reaching as to entitle her to a divorce

against him in a case like the present one. On the contrary it is expressly provided in

Law 8, title 2,partida 4, as follows:

For the sin of each one of them is of itself a bar to an accusation against the other.

Our conclusion is that neither one of the parties is entitled to a divorce.

The result makes it unnecessary to consider that part of the judgment which relates to

the settlement of the conjugal partnership.

Section 497[[1]] authorizes us in cases of this kind "to make such findings upon the facts

and render such final judgment as justice and equity require."

The judgment below is reversed, and we find from the evidence the following facts:

(1) The allegations of the complaint as to the marriage of the parties and as to the acts

of adultery committed by the defendant are true as therein stated except as to the date

of the adultery committed with Gregoria Bermejo.

(2) The plaintiff, in the summer of 1892, at Talisay, in the Province of Occidental

Negros, committed adultery with one Zabal, a corporal of the civil guard.

As conclusion of law from the foregoing facts we hold that neither party is entitled to

judgment of divorce against the other; that judgment be entered that the plaintiff take

nothing by her action or the defendant by his cross demand, and that neither party

recover of the other any costs either in this court or the Court of First Instance.

Judgment will be entered accordingly forty days from the filing of this decision, and

the case remanded to the court below for execution. So ordered.

Arellano, C. J., Torres and Mapa, JJ., concur.

McDonough, J., dissents.

Johnson, J., took no part.

Separate Opinions

COOPER, J., dissenting:

It is immaterial whether a divorce a mensa et thoro is governed by the provisions

contained in Title IV of book 1 of the Civil Code, by the canonical law, or by the

Laws of the partidas. Under each the causes for divorce are substantially the same,

one of which is for adultery.

The conclusion reached by the majority of the court is that both plaintiff and

defendant have been guilty of adultery, and that therefore neither is entitled to relief.

In entering upon a review of the evidence and a discussion of this question it is proper

to refer to our statute upon the subject of a review by this court, of evidence, and to

determine in what cases it is allowed and the rules which govern where such review is

permitted.

It is provided in section 497 of the Code of Civil Procedure that the Supreme Court

shall not review the evidence taken in the court below nor retry the questions of fact

except " . . . 3. If the excepting party filed a motion in the Court of First Instance for a

new trial upon the ground that the findings of fact were plainly and manifestly against

the weight of evidence, and the court overruled said motion and due exception was

taken to his overruling the same, the Supreme Court may review the evidence."

The motion for a new trial filed in the court below was based upon the ground that the

"findings of fact were contrary to the proofs presented on the trial."

Is this a sufficient compliance with the provisions above cited, it not being stated in

the motion "that the findings of fact were plainly and manifestly against the weight of

evidence?"

If this provision of the code stood alone, the failure to comply with this requirement

might be regarded as simply a defect in the motion, but construed in connection with

the other provisions the question becomes a different one. Under the provisions of

section 145 of the Code of Civil Procedure the Court of First Instance may, at any

time during the term at which an action has been tried, set aside the judgment and

grant a new trial on the ground that the evidence was insufficient to justify the

decision, or that it is against law; but it is expressly provided in this connection by

section 146 that the overruling or granting of a motion for a new trial shall not be a

ground of exception, " but shall be deemed to have been an act of discretion on the

part of the judge."

But even if the conclusion should be reached that the motion is sufficient to authorize

a review of the evidence, still this court must be restricted in reviewing the evidence

and in retrying the facts by the provisions contained in clause 3, section 499, and the

judgment of the lower court should not be reversed unless the findings of the court

were plainly and manifestly against the weight of evidence.

It is very clear from these provisions it was the intention of the legislative department

that the findings of fact made by a judge of the Court of First Instance should be

entitled to all the weight that a verdict of a jury has in those jurisdiction where jury

trial prevail, and that the findings of fact, like the verdict of the jury, should not be

disturbed where the evidence is merely conflicting. The reason for this is that the trial

court, having the witnesses before it, is most competent to judge of the weight to be

attached to their testimony, and that it is not sufficient that the appellate court, looking

at their testimony as it is written down, would have come to a different conclusion.

Where there is a direct and substantial conflict, and the determination of a question

depends on the credibility and weight to be given to the testimony of witnesses, the

rule is the court will not set aside the findings even where they might have found the

other way. That the question of credibility of witnesses is for the court below, and not

for the appellate court, to determine is supported by decisions of many courts of the

United States.

It is on account of the superior means that a trial judge has by reason of the presence

of the witnesses, and the observance of their demeanor while testifying, that such a

rule exists.

It appears from the decision of the trial judge that he placed no little stress upon the

appearance and demeanor of the witnesses. With reference to the testimony of the

woman Apolonia Aurelio, upon the credibility of whose testimony the case as to the

adultery of the plaintiff largely rests, he says:

That the testimony of this woman Apolonia is too uncertain and too suspicious to

justify any court in declaring the plaintiff guilty of adultery, especially when the

worthlessness and the dubious character of the testimony of the other witnesses for the

defendant of this subject increases the probability of the existence of something in the

nature of a conspiracy to destroy the case of the plaintiff and support that of the

defendant in the present case.

There are other considerations in the evidence, as well as in the atmosphere of the

court room and the demeanor of the parties during the trial, which inclined the court

to believe at that time that the true facts of this case were with the plaintiff.

Again, he says:

This court does not hesitate to say that the attitude of the plaintiff was such as to

impress the court very favorably in her behalf. Not a particle of vindictiveness toward

the man who, as she believes, has so unjustly treated her, was exhibited by her; her

entire bearing was that of modest, retiring, self-respecting, and conscientious woman.

Again, speaking of the testimony of the woman Apolonia, he says:

The plaintiff and the plaintiff's mother both swore that this woman, Apolonia, never

commenced to work for the plaintiff until after the year 1893, after the couple had

separated, and that she was then sent by the husband to the wife as a servant. The wife

also says that trouble arose between her and this woman, Apolonia, subsequent to

1893, by reason of the fact that Apolonia was about to marry a man whom the wife

disliked. This statement is not denied by any of the defendant's witnesses. It therefore

shows that a motive exists on the part of this woman, Apolonia, to injure the wife.

There is also evidence in the case tending to show that this woman, Apolonia received

a large sum of money shortly before the trial of this case, which money came from the

defendant for some of his agents.The court, however, does not regard this testimony

as of great importance, because it is too vague, but the other testimony is very

important. The attitude of the woman, Apolonia, on the witness stand was apparently

hostile to the plaintiff.

An examination of the evidence of the case not only shows that the findings of fact by

the Court of First Instance are not plainly and manifestly against the weight of

evidence, but the preponderance of evidence seems in favor of the plaintiff, especially

upon the question of condonation.

I shall not attempt to review the mass of testimony found in the record. In view of the

many conflicts occurring in the statements of the witnesses, the many inconsistencies

in the testimony of material witnesses, the suspicion cast upon some of the witnesses ?

it is clear that this is a case in which the trial judge possessed advantages far superior

to those of this court in passing upon the credibility of the witnesses who testified in

the case, and gave due weight to such as were entitled to belief, and the rule applies

with peculiar force that an appellate court will not disturb the finding of a trial court

when these findings depend upon the credibility of witnesses.

It is stated in the majority opinion that the conclusion that the plaintiff was guilty of

adultery was arrived at from a consideration chiefly of the admitted facts in the case,

the most important of which is a written by the plaintiff to defendant on March 6,

1899; that this letter is considered as practically conclusive against her. The entire

letter, extracts of which are given in the majority opinion, is as follows:

MY RESPECTED AND UNFORGETTABLE ESTEBAN: Pardon that I disturb your

tranquillity, E., that in the midst of a profound sentiment that affects me I find

consolation for my profound grief in addressing the man who loved me in the time of

my good fortune, and who led me to the altar before the eyes of the Being whom we

most love, God. Remember me; let all down a drop of compassion from your soul;

look at me back again with your cheerful eyes at the woman who is watching for you.

I know well that you are very disgusted with me, and for just reason ? for having

claimed my pension. Be calm; quiet yourself; reflect for a moment my situation,

which I will explain to you.

When you went to Europe mother went to see you to explain our situation to you, and

you answered that it had nothing to do with you. She insulted you, Esteban; you had

reason to be offended.

Now, regarding my having demanded my pension, you are also in the right, but

pardon my impudence in stating what I have to say:

I swear to you, E., and call God to witness, that when you went to Spain my pain was

unbearable, thinking of my misfortune. I had become completely desperate, and

Orozco wrote and advised me to demand my pension in view of the fact that you were

going to reside permanently in Spain; then I finally did commence proceedings in

view of my desperate situation, and nothing further came of the matter during your

absence.

If the Lacsons, who wish me ill, have told you more they have made a mistake, for the

truth about my comportment is that it can not be complained of. You can secure

information regarding my conduct during our separation here in Valladolid.

I keep yet on my face the shame of what has happened, notwithstanding that it has

been already many years since we parted. Therefore, my husband, forgive me; erase

what has happened; remember me for God's love; behold our dark fate; in you I trust

my future.

E., I have heard that you had some misfortunes. I send my sympathy, although I am

unworthy of your presence. I also learned from Modesto that you do not wish to have

my pension sent. Do as you wish. Good bye, E., take good care of yourself, and

command,

Your faithful servant, Q. B. S. P.,

AGUEDA BENEDICTO.

March 6, 1899.

P. S. - On the 11th of February papa died, and delivered his soul to God after a painful

illness.

This letter, upon which so much stress has been placed in the opinion of the majority,

as showing the guilt of the plaintiff, rather indicates that the writer was in a morbid

state of mind, in great distress and dejection of spirit, and, in her own language,

"completely desperate." It shows a willingness to prostrate herself before her husband,

to subject herself to his will, to confess any manner of misdoings which will appease

his wrath, and regain his favor without regard to innocence or guilt. This is evident

when she says: "I know that you are disgusted with me for having claimed my

pension" when it is remembered that the wife is entitled to one-half of all property

acquired as gains during the marriage, as community property; that at the time this

letter was written, the husband was not only in the enjoyment of a large estate in his

separate right but was in the exclusive possession and enjoyment of all of the

community property accumulated during eight years of marriage, one-half of which

belonged to her, yet we find her confessing herself as guilty for claiming as small

pittance of what belonged to her, and apologizing for having taken at some previous

time steps to compel him to do that which good conscience should have dictated to

him as just and right.

It is hard to conceive that the letter was the result of remorse of conscience for sins

committed against the husband when it appears from the record that the husband, after

their separation, during the space of ten years, maintained illicit relations with no less

than four mistresses, three of whom bore him offspring; and that there had been a

betrayal of the confidence of the wife, a near relative, when a girl less than 14 years of

age, which fact a sense of shame did not restrain the defendant from disclosing in his

testimony on the trial of the case.

With reference to the question of condonation, it will be seen from the citation

contained in the majority opinion that this doctrine is recognized by Law 6, title

9,partida 4. It exists in the ecclesiastical law and is recognized in the United States

and England and in all countries where laws of divorce exists.

But it is stated in the majority opinion that there is no law to be found in

the partidaswhich says that the effect of pardon would be so far-reaching as to make it

applicable to this case.

By condonation the offending party is restored to the same position he or she occupied

before the offense was committed, the only condition being that the offense must not

be repeated. To say that the effect of pardon would not be so far-reaching as to entitle

the plaintiff to divorce, in a case like the present one, is equivalent to saying that

because the plaintiff has been once guilty she would forever lose her right to a divorce

for offenses of a like character thereafter committed by the husband. This makes

condonation conditioned, not only that the parties receiving it will not gain commit

the same offense, but it adds the further condition that the party granting it shall

forever have the right to commit the same offense himself with impunity.

This question has often been before the courts. The American authorities are uniform

that a condoned offense, not being sufficient as a cause for divorce, is not a bar to

divorce in favor of the plaintiff. (9 Am. and Eng. Enc. of Law, 821.)

In Masten vs. Masten (15 N. H.) it is said: "Where the statutes are silent upon this

question the courts hold that as a condoned offense can not be a cause for divorce,

therefore it can not be set up as a bar in recrimination."

In Jones vs. Jones (18 N. J. Eq., 33) it is said: "It is better to hold that when the erring

party is received back and forgiven the marriage contract is renewed and begins as res

integer, and that it is for the party and not for the courts to forgive new offenses."

In the case of Cumming vs. Cumming (135 Mass., 390) the court says:

To hold otherwise would operate to some extent as an encouragement or license to the

condoning party to commit offenses against the marriage relation; would also tend to

give a constant sense of inequality between the parties with respect to their legal

rights. All condonation is in a sense conditional ? that is, there is an implied condition

that the same offense shall not be repeated. It is not, however, attended with the

further condition that the offender shall be disqualified from thereafter alleging any

ground of complaint for subsequent misconduct against the condoning party. No such

inequality should be established by an arbitrary rule of law applicable to all cases.

Condonation restores equality before the law. If the injured party is willing to forgive

the offense the law may well give full effect to that forgiveness and not extend to such

party the temptation, the encouragement, the license to run through the whole calendar

of matrimonial offenses, without redress at the hands of the party. We have not

overlooked the consideration that an original adultery by a libellant may have had the

effect to weaken the sense of the obligation of the marriage contract on the part of the

libelee, and that for this reason a divorce under such circumstances ought to be

refused. This consideration is of weight, and would deserve especial attention if

judicial discretion were to exercised in determining a case, but it is not sufficient to

overcome the controlling reasons in favor of the establishment of a general rule to the

contrary."

A finding of the lower court against condonation would have been plainly and

manifestly against the weight of evidence.

It is shown by the evidence that the next day after the supposed adultery of the wife

the defendant took his wife to the house of her parents. Andrea de la Rama, the

mother of the plaintiff, testifies that when the defendant brought the plaintiff to her

house she supposed it was on a visit; that they remained at her house about a week;

that during their stay the plaintiff and defendant slept in the same room, and that there

was only one bed in the room that they occupied.

The plaintiff testified that on this occasion she and her husband remained together at

the house of her parents from four to six days; that during this time they slept in the

same bed and had matrimonial intercourse.

The defendant de la Rama testified that he remained at the house of the plaintiff's

parents one day and two nights; that he occupied the same room and slept in a

different bed. On being asked by the court as to the length of time he remained with

his wife, he stated that he remained there one day and two nights, more or less, and

when asked if he slept in the same room but in different bed he answered that he was

not sure that there were two beds in the room.

This court has not only reversed the judgment of the trial court but has entered a

judgment against the plaintiff.

It is true that the court may, in the exercise of its appellate jurisdiction, affirms,

reverse, or modify any final judgment and may direct the proper judgment to be

entered, but where there has been failure of the lower court to make a sufficient

finding of fact, or where there are defects or omissions in the pleadings which may be

remedied by amendment, or where there is a possibility of supplying defects in the

proof, such practice should not be followed.

It is stated in the opinion that it is unnecessary to pass upon the question of

condonation for two reasons: (1) The court below made no findings of fact on the

subject. (2) Even if the court had found that there was condonation, this would not

have entitled the plaintiff to a divorce.

I have before attempted to answer the last objection. As to the first objection - that is,

that the lower court made no findings on the subject - if this be true the case should be

reversed in order that a finding be made.

To deprive the plaintiff of the judgment which she has obtained and make a final

determination of the case here without giving her an opportunity of correcting this

error, if such exists, is inequitable and unjust.

Footnotes

[[1]] Code of Civil Procedure.