SECOND DIVISION

G.R. No. 196842 October 9, 2013

Topic: Probable cause in concubinage
ALFREDO ROMULO A. BUSUEGO, Petitioner,
vs.
OFFICE OF THE OMBUDSMAN MINDANAO and ROSA S.
BUSUEGO, Respondents.

DECISION

PEREZ, J.:

Before us is a petition for certiorari seeking to annul and set aside

the Resolution of the Ombudsman dated 17 April 20091 and Order
dated October 2010,2 which directed the filing of an Information for
Concubinage under Article 334 of the Revised Penal Code against
petitioner Alfredo Romulo A. Busuego (Alfredo).

We chronicle the facts thus.

Private respondent Rosa S. Busuego (Rosa) filed a complaint for: (1)

Concubinage under Article 334 of the Revised Penal Code; (2)
violation of Republic Act No. 9262 (Anti-Violence Against Women
and Their Children); and (3) Grave Threats under Article 282 of the
Revised Penal Code, before the Office of the Ombudsman against
her husband, Alfredo, with designation Chief of Hospital, Davao
Regional Hospital, Apokon, Tagum City.
In her complaint, Rosa painted a picture of a marriage in disarray.

She and Alfredo were married on 12 July 1975 at the Assumption

Church, Davao City. Their union was blessed with two (2) sons,
Alfred and Robert, born in 1976 and 1978, respectively. Sometime
in 1983, their marriage turned sour. At this time, Rosa unearthed
photographs of, and love letters addressed to Alfredo from, other
women. Rosa confronted Alfredo who claimed ignorance of the
existence of these letters and innocence of any wrongdoing.

Purportedly, Alfredo very rarely stayed at home to spend time with

his family. He would come home late at night on weekdays and
head early to work the next day; his weekends were spent with his
friends, instead of with his family. Rosa considered herself lucky if
their family was able to spend a solid hour with Alfredo.

Around this time, an opportunity to work as nurse in New York

City, United States of America (US) opened up for Rosa. Rosa
informed Alfredo, who vehemently opposed Rosa’s plan to work
abroad. Nonetheless, Rosa completed the necessary requirements to
work in the US and was scheduled to depart the Philippines in
March 1985.

Before leaving, Rosa took up the matter again with Alfredo, who
remained opposed to her working abroad. Furious with Rosa’s
pressing, Alfredo took his loaded gun and pointed it at Rosa’s right
temple, threatening and taunting Rosa to attempt to leave him and
their family. Alfredo was only staved off because Rosa’s mother
arrived at the couple’s house. Alfredo left the house in a rage: Rosa
and her mother heard gun shots fired outside.
Because of that incident, Rosa acted up to her plan and left for the
US. While in the US, Rosa became homesick and was subsequently
joined by her children who were brought to the US by Alfredo. Rosa
singularly reared them: Alfred, from grade school to university,
while Robert, upon finishing high school, went back to Davao City
to study medicine and lived with Alfredo.

During that time his entire family was in the US, Alfredo never sent
financial support. In fact, it was Rosa who would remit money to
Alfredo from time to time, believing that Alfredo had stopped
womanizing. Rosa continued to spend her annual vacation in Davao
City.

Sometime in 1997, Rosa learned that a certain Emy Sia (Sia) was
living at their conjugal home. When Rosa asked Alfredo, the latter
explained that Sia was a nurse working at the Regional Hospital in
Tagum who was in a sorry plight as she was allegedly being raped
by Rosa’s brother-in-law. To get her out of the situation, Alfredo
allowed Sia to live in their house and sleep in the maids’ quarters.
At that time, Rosa gave Alfredo the benefit of the doubt.

In October 2005, Rosa finally learned of Alfredo’s extra-marital

relationships. Robert, who was already living in Davao City, called
Rosa to complain of Alfredo’s illicit affairs and shabby treatment of
him. Rosa then rang up Alfredo which, not surprisingly, resulted in
an altercation. Robert executed an affidavit, corroborating his
mother’s story and confirming his father’s illicit affairs:

1. In varying dates from July 1997 to January 1998, Robert found it

strange that Sia slept with his father in the conjugal bedroom.
2. He did not inform his mother of that odd arrangement as he did
not want to bring trouble to their family.

3. Eventually, Sia herself confirmed to Robert that she was Alfredo’s

mistress.

4. During this period of concubinage, Sia was hospitalized and

upon her discharge, she and Alfredo resumed their cohabitation.

5. The relationship between Alfredo and Sia ended only when the
latter found another boyfriend. 6. His father next took up an affair
with Julie de Leon (de Leon) whom Robert met when de Leon
fetched Alfredo on one occasion when their vehicle broke down in
the middle of the road.

7. Robert read various Short Message Service (SMS) exchanges

between Julie and Alfredo on Alfredo’s mobile phone.

8. On 23, 24, 30 and 31 December 2004, de Leon stayed in Rosa’s

and Alfredo’s conjugal dwelling and stayed in the conjugal room the
entire nights thereof.

The househelpers, Melissa S. Diambangan and Liza S.

Diambangan, likewise executed a joint affidavit in support of Rosa’s
allegations:

1. They had seen Sia sleep and stay overnight with Alfredo in the
conjugal bedroom.
2. Sia herself, who called Alfredo "Papa," confirmed the two’s sexual
relationship.

3. On 23, 24, 30 and 31 December 2004, de Leon stayed in the

conjugal dwelling and slept overnight with Alfredo in the conjugal
room.

As a result, Rosa and their other son Alfred forthwith flew to Davao
City without informing Alfredo of their impending return. Upon
Rosa’s return, she gathered and consolidated information on her
husband’s sexual affairs.

Pursuant to her charges of violation of Republic Act No. 9262 and

Grave Threats, Rosa averred that during the course of their
marriage, apart from the marital infidelity, Alfredo physically and
verbally abused her and her family. On one occasion after Rosa
confirmed the affairs, Alfredo threatened their family, including
other members of their household that he will gun them down
should he chance upon them in Tagum City. Lastly, on 22 March
2006, Alfredo purportedly dismissed house helper Liza Diambangan
and threatened her.

As expected, Alfredo, in his counter-affidavit, denied all accusations

against him and alleged that:

1. Rosa, despite his pleas for them to remain and raise their family
in the Philippines, chose to live in the US, separate from him.

2. Rosa’s allegations that he had kept photographs of, and love

letters from, other women, were only made to create a cause of
action for the suit for Legal Separation which Rosa filed sometime
in 1998.

3. It was highly improbable that he committed acts of concubinage

with Sia and de Leon since from the time he became Chief of
Hospital of the Davao Regional Hospital in Tagum City, he
practically stayed all days of the work week in the hospital. The
instances he went home were few and far between, only to check on
the house and provide for household expenses.

4. When Robert returned to Davao City and lived with him, it

became more impossible for him to have shacked up with Sia and
de Leon in the conjugal dwelling.

5. With respect to his alleged relationship with Sia, without

admitting to anything, that Sia, for a time, may have lived in his
and Rosa’s conjugal house, staying at the maids’ quarters. However,
at no instance did he keep Sia as his mistress in the conjugal
dwelling.

6. As regards the dates of December 23, 24, 30 and 31, 2004 when
he supposedly stayed with de Leon in the conjugal room, Alfredo
pointed out that said dates were busiest days of the year in the
hospital where his presence as Chief of Hospital is most required.

7. By Rosa’s own admission, she first learned of Alfredo’s alleged

concubinage in 1997, and yet she still continued with her yearly
visits to Alfredo in Davao City. Those instances ought to be
construed as condonation of the concubinage.
8. Significantly, the alleged concubines, Sia and de Leon, were not
impleaded along with Alfredo as party-respondents in the complaint
in violation of Article 344 of the Revised Penal Code.

Alfredo made short shrift of Rosa’s charges of violation of Republic

Act No. 9262 and Grave Threats. He claimed that, at no time, did he
threaten, the lives or, to harm his wife, their family and members of
their household. He only berated the help for perpetrating gossip
about his behavior and conduct.

In their subsequent exchange of responsive pleadings, Rosa

maintained Alfredo’s culpability, and naturally, Alfredo claimed
innocence.

In the course thereof, the procedural issue of Rosa’s failure to

implead Sia and de Leon as respondents cropped up. Alfredo
insisted that Rosa’s complaint ought to be dismissed for failure to
implead his alleged concubines as respondents.

Specifically to dispose of that issue, the Ombudsman scheduled a

clarificatory hearing where both Rosa and Alfredo were represented
by their respective counsels:

x x x Rosa was apprised of the need to implead the two alleged

mistresses in the complaint for Concubinage pursuant to Article
344 of the Revised Penal Code. Although Alfredo objected to the
amendment of the complaint, at this point in time, due to the
alleged procedural lapse committed by Rosa, this Office explained to
the parties that the position of Alfredo would just prolong the
conduct of the preliminary investigation since Rosa can just re-file
her complaint. The doctrine of res judicata does not apply in the
preliminary investigation stage. Hence, the counsel for Rosa was
directed to submit to this Office the addresses of the alleged
mistresses so that they could be served with the Order directing
them to file their counter-affidavits.

Rosa submitted an Ex-Parte Manifestation on the last known

addresses of Julie de Leon and Emy Sia. x x x.3

On 24 June 2008, the Ombudsman issued a Joint Order4

impleading Sia and de Leon as party-respondents in the complaint
for Concubinage and directing them to submit their respective
counter-affidavits within a period of time. Copies of the Joint Order
were mailed to Sia’s and de Leon’s last known addresses, as
provided by Rosa to the Ombudsman.

Sia and de Leon did not submit their respective counter-affidavits: a

copy of the Joint Order sent to Sia’s last known address was
returned to the Ombudsman with the notation on the Registry
Return Receipt No. 1624 "Return to Sender; removed," while a copy
thereof to de Leon was received on 3 September 2008 by Ananias de
Leon.5

Apparently still opposed to the Ombudsman’s ruling to simply

amend the complaint and implead therein Alfredo’s alleged
mistresses, Alfredo filed his Comment to the 24 June 2008 Order
with Motion to Dismiss and/or Refer the charges to the Appropriate
Provincial/City Prosecutor6 praying for dismissal of the complaint
for: (1) failure to implead the two mistresses in violation of Article
344 of the Revised Penal Code; and in the alternative, (2) referral of
the complaint to the Office of the City Prosecutor as provided in
OMB-DOJ Circular No. 95-001.

Rosa filed a Reply to that latest pleading of Alfredo.

On 17 April 2009, the Ombudsman issued the herein assailed
Resolution, disposing of the procedural issues:

Before dwelling into the merits of the case, this Office finds an
urgent need to resolve the ancillary issues raised by petitioner Dr.
Busuego on: 1.) the alleged legal infirmity of Rosas’s initiatory
pleading by resorting to a procedural short cut which would result
to the delay in the disposition of this case; and 2.) the criminal
charges imputed are not in relation to office, hence, the Office of the
Provincial/City Prosecutor shall investigate and prosecute this case
pursuant to OMB-DOJ Joint Circular No. 95-001, Series of 1995.

On the first issue, this Office observed that Busuego had already
pointed out in his counter-Affidavit the alleged deficiency in the
complaint. Rosa also explained in her Reply that the names of the
mistresses were categorically mentioned in the complaint. She
averred that this Office is empowered to investigate and prosecute
any act or omission of a public official or employee to the exclusion
of non-government employees. She stated that the inclusion of the
alleged concubines in the Information to be filed in court is a matter
of procedure, within the competence of the investigating prosecutor.

In order to clarify some matters, including the said issue, with the
parties, the clarificatory hearing was conducted. It was explained in
the said hearing the need to implead the alleged concubines in this
case pursuant to Article 344 of the Revised Penal Code and to
obviate the proceedings, Rosa was directed to submit the addresses
of the alleged concubines. Busuego’s position that the said short
cut procedure would delay the proceedings is misplaced. If the case
will be dismissed based on procedural infirmity, Rosa could still
amend her complaint and re-file this case since the doctrine of res
judicata does not apply in the preliminary investigation stage of the
proceedings.

On the second issue, the motion of Busuego to refer this case to the
Office of the City Prosecutor was belatedly filed. Record would show
that the motion praying for the referral of this case to the Office of
the City Prosecutor was filed on 17 July 2008, after the parties have
already filed all their pleadings and the case is now ripe for
resolution. Further, referral to the said office is not mandatory as
cited in the said Joint Circular.7

In the same Resolution, the Ombudsman, ultimately, found

probable cause to indict only Alfredo and Sia of Concubinage and
directed the filing of an Information against them in the appropriate
court:

WHEREFORE, in view of the foregoing, this Office finds a prima

facie case for violation of Article 334 of the Revised Penal Code
(concubinage) and that petitioner ALFREDO ROMULO BUSUEGO y
ABRIO, and EMY SIA, are probably guilty thereof.

Let the herewith Information be filed in the appropriate court.

The charges for: 1.) Concubinage against Alfredo Romulo Busuego y

Abrio and Julie de Leon; 2.) Grave Threats against Alfredo Romulo y
Abrio; and 3.) violation of RA 9262 (Anti-Violence Against Women
and Children Act), are hereby DISMISSED for lack of merit.8

Alfredo filed a Partial Motion for Reconsideration excepting to the

Ombudsman’s ruling on the automatic inclusion of Sia as
respondent in the complaint and their indictment for the crime of
Concubinage. Alfredo is adamant that Rosa’s complaint should
have, at the outset, impleaded his alleged concubines. Failing such,
the Ombudsman cannot resort to automatic inclusion of party-
respondents, erroneously finding him and Sia prima facie culpable
for Concubinage. For good measure, Alfredo pointed out that from
Rosa’s own allegations, she had condoned or pardoned Alfredo’s
supposed concubinage. Alfredo likewise submitted Liza S.
Diambangan’s affidavit, recanting her previous affidavit
corroborating Rosa’s charges.

Nonetheless, the Ombudsman stood pat on its ruling, declared that

the Partial Motion for Reconsideration was filed out of time, and
gave scant attention to Liza S. Diambangan’s affidavit of
recantation:

WHEREFORE, all the foregoing considered, this instant Motion for

Reconsideration is hereby DENIED. The findings in the questioned
Resolution hereby remains undisturbed. Let the Information for
Concubinage be filed in the proper court against herein Busuego.9

Alfredo now comes to us on petition for certiorari alleging grave

abuse of discretion in the Ombudsman’s finding of probable cause
to indict him and Sia for Concubinage. Alfredo’s badges of grave
abuse of discretion are the following:

1. The Ombudsman railroaded the inclusion of Sia and de Leon as

party-respondents in the complaint;

2. The Ombudsman did not refer the complaint to the Department

of Justice, considering that the offense of Concubinage is not
committed in relation to his office as Chief of Hospital;
3. The Ombudsman glossed over Rosa’s condonation of Alfredo’s
supposed Concubinage when she alleged in the complaint that she
had known of Alfredo’s womanizing and believed him to have
changed his ways;

4. The Ombudsman did not take into consideration the affidavit of

recantation of Liza Diambangan; and

5. The Ombudsman found probable cause to indict Alfredo and Sia

for Concubinage.

We sustain the Ombudsman.

The Ombudsman has full discretionary authority in the

determination of probable cause during a preliminary
investigation.10 This is the reason why judicial review of the
resolution of the Ombudsman in the exercise of its power and duty
to investigate and prosecute felonies and/or offenses of public
officers is limited to a determination of whether there has been a
grave abuse of discretion amounting to lack or excess of
jurisdiction. Courts are not empowered to substitute their judgment
for that of the Ombudsman.11

By grave abuse of discretion is meant such capricious and

whimsical exercise of judgment tantamount to lack of
jurisdiction.12 The abuse of discretion must be so patent and gross
as to amount to an evasion of a positive duty or a virtual refusal to
perform a duty enjoined by law, or to act at all in contemplation of
law, as where the power is exercised in an arbitrary and despotic
manner by reason of passion or hostility.13 In this regard,
petitioner failed to demonstrate the Ombudsman's abuse, much
less grave abuse, of discretion.

First. Alfredo insists that the Ombudsman’s automatic inclusion,

over his vehement objections of Sia and de Leon as party-
respondents, violates Article 344 of the Revised Penal Code and
Section 5, Rule 110 of the Rules of Court, which respectively
provide:

Art. 344. Prosecution of the crimes of adultery, concubinage,

seduction, abduction, rape and acts of lasciviousness. — The
crimes of adultery and concubinage shall not be prosecuted except
upon a complaint filed by the offended spouse.

The offended party cannot institute criminal prosecution without

including both the guilty parties, if they are both alive, nor, in any
case, if he shall have consented or pardoned the offenders.

Section 5. Who must prosecute criminal action. – xxx.

The crimes of adultery and concubinage shall not be prosecuted

except upon a complaint filed by the offended spouse. The offended
party cannot institute criminal prosecution without including the
guilty parties, if both are alive, nor, in any case, if the offended
party has consented to the offense or pardoned the offenders.

We do not agree.

The submission of Alfredo is belied by the fact that the Ombudsman

merely followed the provisions of its Rules of Procedure. Thus:
Rule II
PROCEDURE IN CRIMINAL CASES

xxxx

Section 2. Evaluation – Upon evaluating the complaint, the

investigating officer shall recommend whether it may be:

a) dismissed outright for want of palpable merit;

b) referred to respondent for comment;

c) indorsed to the proper government office or agency which has

jurisdiction over the case;

d) forwarded to the appropriate office or official for fact-finding

investigation;

e) referred for administrative adjudication; or

f) subjected to a preliminary investigation.

xxxx
Section 4. Procedure – The preliminary investigation of cases falling
under the jurisdiction of the Sandiganbayan and Regional Trial
Courts shall be conducted in the manner prescribed in Section 3,
Rule 112 of the Rules of Court, subject to the following provisions:

a) x x x

b) After such affidavits have been secured, the investigating officer

shall issue an order, attaching thereto a copy of the affidavits and
other supporting documents, directing the respondents to submit,
within ten (10) days from receipt thereof, his counter-affidavits and
controverting evidence with proof of service thereof on the
complainant. The complainant may file reply affidavits within ten
(10) days after service of the counter-affidavits.

c) If the respondents does not file a counter-affidavit, the

investigating officer may consider the comment filed by him, if any,
as his answer to the complaint. In any event, the respondent shall
have access to the evidence on record.

d) No motion to dismiss shall be allowed except for lack of

jurisdiction.

Neither may a motion for a bill of particulars be entertained.

If respondent desires any matter in the complainant’s affidavit to be

clarified, the particularization thereof may be done at the time of
the clarificatory questioning in the manner provided in paragraph (f)
of this section.
e) If the respondents cannot be served with the order mentioned in
paragraph 6 hereof, or having been served, does not comply
therewith, the complaint shall be deemed submitted for resolution
on the basis of the evidence on the record.

f) If, after the filing of the requisite affidavits and their supporting
evidences, there are facts material to the case which the
investigating officer may need to be clarified on, he may conduct a
clarificatory hearing during which the parties shall be afforded the
opportunity to be present but without the right to examine or cross-
examine the witness being questioned. Where the appearance of the
parties or witnesses is impracticable, the clarificatory questioning
may be conducted in writing, whereby the questions desired to be
asked by the investigating officer or a party shall be reduced into
writing and served on the witness concerned who shall be required
to answer the same in writing and under oath.

g) Upon the termination of the preliminary investigation, the

investigating officer shall forward the records of the case together
with his resolution to the designated authorities for their
appropriate action thereon.

No information may be filed and no complaint may be dismissed

without the written authority or approval of the ombudsman in
cases falling within the jurisdiction of the Sandiganbyan, or of the
proper Deputy Ombudsman in all other cases. (Emphasis supplied).

Notably, Rosa’s complaint contained not just the Concubinage

charge, but other charges: violation of Republic Act No. 9262 and
Grave Threats. Upon the Ombudsman’s perusal, the complaint was
supported by affidavits corroborating Rosa’s accusations. Thus, at
that stage, the Ombudsman properly referred the complaint to
Alfredo for comment. Nonetheless, while the Ombudsman found no
reason for outright dismissal, it deemed it fit to hold a clarificatory
hearing to discuss the applicability of Article 344 of the Revised
Penal Code, the issue having been insisted upon by Alfredo.

Surely the procedural sequence of referral of the complaint to

respondent for comment and thereafter the holding of a clarificatory
hearing is provided for in paragraph b, Section 2 and paragraphs d
and f, Section 4 of Rule II, which we have at the outset
underscored. Thus did the Ombudsman rule:

In order to clarify some matters, including the said issue, with the
parties, the clarificatory hearing was conducted. It was explained in
the said hearing the need to implead the alleged concubines in this
case pursuant to Article 344 of the Revised Penal Code and to
obviate the proceedings, Rosa was directed to submit the addresses
of the alleged concubines. Busuego’s position that the said short
cut procedure would delay the proceedings is misplaced. If the case
will be dismissed based on procedural infirmity, Rosa could still
amend her complaint and re-file this case since the doctrine of res
judicata does not apply in the preliminary investigation stage of the
proceedings.14

The Ombudsman merely facilitated the amendment of the

complaint to cure the defect pointed out by Alfredo. We agree with
the Ombudsman that it would be superfluous to dismiss the
complaint when amendment thereof is allowed by its Rules of
Procedure15 and the Rules of Court.16

Second. Alfredo claims that the Ombudsman should have referred

Rosa’s complaint to the Department of Justice (DOJ), since the
crime of Concubinage is not committed in relation to his being a
public officer. This is not a new argument.

The Ombudsman’s primary jurisdiction, albeit concurrent with the

DOJ, to conduct preliminary investigation of crimes involving public
officers, without regard to its commission in relation to office, had
long been settled in Sen. Honasan II v. The Panel of Investigating
Prosecutors of DOJ,17 and affirmed in subsequent cases:

The Constitution, Section 15 of the Ombudsman Act of 1989 and

Section 4 of the Sandiganbayan Law, as amended, do not give to the
Ombudsman exclusive jurisdiction to investigate offenses
committed by public officers or employees. The authority of the
Ombudsman to investigate offenses involving public officers or
employees is concurrent with other government investigating
agencies such as provincial, city and state prosecutors. However,
the Ombudsman, in the exercise of its primary jurisdiction over
cases cognizable by the Sandiganbayan, may take over, at any
stage, from any investigating agency of the government, the
investigation of such cases.

In other words, respondent DOJ Panel is not precluded from

conducting any investigation of cases against public officers
involving violations of penal laws but if the cases fall under the
exclusive jurisdiction of the Sandiganbayan, the respondent
Ombudsman may, in the exercise of its primary jurisdiction take
over at any stage.

Thus, with the jurisprudential declarations that the Ombudsman

and the DOJ have concurrent jurisdiction to conduct preliminary
investigation, the respective heads of said offices came up with
OMB-DOJ Joint Circular No. 95-001 for the proper guidelines of
their respective prosecutors in the conduct of their investigations,
to wit:

OMB-DOJ JOINT CIRCULAR NO. 95-001

Series of 1995

ALL GRAFT INVESTIGATION/SPECIAL PROSECUTIONOFFICERS

OF THE OFFICE OF THE OMBUDSMAN

TO: ALL REGIONAL STATE PROSECUTORS AND THEIR

ASSISTANTS, PROVINCIAL/CITY PROSECUTORS AND THEIR
ASSISTANTS, STATE PROSECUTORS ANDPROSECUTING
ATTORNEYS OF THE DEPARTMENT OFJUSTICE.

SUBJECT: HANDLING COMPLAINTS FILED AGAINST

PUBLICOFFICERS AND EMPLOYEES, THE CONDUCT
OFPRELIMINARY INVESTIGATION, PREPARATION
OFRESOLUTIONS AND INFORMATIONS AND PROSECUTION OF
CASES BY PROVINCIAL AND CITY PROSECUTORS AND THEIR
ASSISTANTS.

x----------------------------------------------------------------------------------
-----x

In a recent dialogue between the OFFICE OF THE OMBUDSMAN

and the DEPARTMENT OF JUSTICE, discussion centered around
the latest pronouncement of the SUPREME COURT on the extent to
which the OMBUDSMAN may call upon the government prosecutors
for assistance in the investigation and prosecution of criminal cases
cognizable by his office and the conditions under which he may do
so. Also discussed was Republic Act No. 7975 otherwise known as
"AN ACT TO STRENGTHEN THE FUNCTIONAL AND STRUCTURAL
ORGANIZATION OF THE SANDIGANBAYAN, AMENDING FOR THE
PURPOSE PRESIDENTIAL DECREE NO. 1606, AS AMENDED" and
its implications on the jurisdiction of the office of the Ombudsman
on criminal offenses committed by public officers and employees.

Concerns were expressed on unnecessary delays that could be

caused by discussions on jurisdiction between the OFFICE OF THE
OMBUDSMAN and the DEPARTMENT OF JUSTICE, and by
procedural conflicts in the filing of complaints against public
officers and employees, the conduct of preliminary investigations,
the preparation of resolutions and informations, and the
prosecution of cases by provincial and city prosecutors and their
assistants as DEPUTIZED PROSECUTORS OF THE OMBUDSMAN.

Recognizing the concerns, the OFFICE OF THE OMBUDSMAN and

the DEPARTMENT OF JUSTICE, in a series of consultations, have
agreed on the following guidelines to be observed in the
investigation and prosecution of cases against public officers and
employees:

1. Preliminary investigation and prosecution of offenses committed

by public officers and employees IN RELATION TO OFFICE whether
cognizable by the SANDIGANBAYAN or the REGULAR COURTS, and
whether filed with the OFFICE OF THE OMBUDSMAN or with the
OFFICE OF THE PROVINCIAL/CITY PROSECUTOR shall be under
the control and supervision of the office of the OMBUDSMAN.

2. Unless the Ombudsman under its Constitutional mandate finds

reason to believe otherwise, offenses NOT IN RELATION TO OFFICE
and cognizable by the REGULAR COURTS shall be investigated and
prosecuted by the OFFICE OF THE PROVINCIAL/CITY
PROSECUTOR, which shall rule thereon with finality.

3. Preparation of criminal information shall be the responsibility of

the investigating officer who conducted the preliminary
investigation. Resolutions recommending prosecution together with
the duly accomplished criminal informations shall be forwarded to
the appropriate approving authority.

4. Considering that the OFFICE OF THE OMBUDSMAN has

jurisdiction over public officers and employees and for effective
monitoring of all investigations and prosecutions of cases involving
public officers and employees, the OFFICE OF THE
PROVINCIAL/CITY PROSECUTOR shall submit to the OFFICE OF
THE OMBUDSMAN a monthly list of complaints filed with their
respective offices against public officers and employees.

xxxx

A close examination of the circular supports the view of the

respondent Ombudsman that it is just an internal agreement
between the Ombudsman and the DOJ.

Sections 2 and 4, Rule 112 of the Revised Rules on Criminal

Procedure on Preliminary Investigation, effective December 1, 2000,
to wit:

SEC. 2. Officers authorized to conduct preliminary investigations –

The following may conduct preliminary investigations:

(a) Provincial or City Prosecutors and their assistants;

(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial
Courts;

(c) National and Regional State Prosecutors; and

(d) Other officers as may be authorized by law.

Their authority to conduct preliminary investigation shall include

all crimes cognizable by the proper court in their respective
territorial jurisdictions.

SEC. 4. Resolution of investigating prosecutor and its review. - If

the investigating prosecutor finds cause to hold the respondent for
trial, he shall prepare the resolution and information. He shall
certify under oath in the information that he, or as shown by the
record, an authorized officer, has personally examined the
complainant and his witnesses; that there is reasonable ground to
believe that a crime has been committed and that the accused is
probably guilty thereof; that the accused was informed of the
complaint and of the evidence submitted against him; and that he
was given an opportunity to submit controverting evidence.
Otherwise, he shall recommend the dismissal of the complaint.

Within five (5) days from his resolution, he shall forward the record
of the case to the provincial or city prosecutor or chief state
prosecutor, or to the Ombudsman or his deputy in cases of offenses
cognizable by the Sandiganbayan in the exercise of its original
jurisdiction. They shall act on the resolution within ten (10) days
from their receipt thereof and shall immediately inform the parties
of such action.

No complaint or information may be filed or dismissed by an

investigating prosecutor without the prior written authority or
approval of the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy.

Where the investigating prosecutor recommends the dismissal of

the complaint but his recommendation is disapproved by the
provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy on the ground that a probable cause
exists, the latter may, by himself file the information against the
respondent, or direct another assistant prosecutor or state
prosecutor to do so without conducting another preliminary
investigation.

If upon petition by a proper party under such rules as the

Department of Justice may prescribe or motu proprio, the Secretary
of Justice reverses or modifies the resolution of the provincial or
city prosecutor or chief state prosecutor, he shall direct the
prosecutor concerned either to file the corresponding information
without conducting another preliminary investigation, or to dismiss
or move for dismissal of the complaint or information with notice to
the parties. The same Rule shall apply in preliminary investigations
conducted by the officers of the Office of the Ombudsman.

confirm the authority of the DOJ prosecutors to conduct

preliminary investigation of criminal complaints filed with them for
offenses cognizable by the proper court within their respective
territorial jurisdictions, including those offenses which come within
the original jurisdiction of the Sandiganbayan; but with the
qualification that in offenses falling within the original jurisdiction
of the Sandiganbayan, the prosecutor shall, after their
investigation, transmit the records and their resolutions to the
Ombudsman or his deputy for appropriate action. Also, the
prosecutor cannot dismiss the complaint without the prior written
authority of the Ombudsman or his deputy, nor can the prosecutor
file an Information with the Sandiganbayan without being deputized
by, and without prior written authority of the Ombudsman or his
deputy.

xxxx

To reiterate for emphasis, the power to investigate or conduct

preliminary investigation on charges against any public officers or
employees may be exercised by an investigator or by any provincial
or city prosecutor or their assistants, either in their regular
capacities or as deputized Ombudsman prosecutors. The fact that
all prosecutors are in effect deputized Ombudsman prosecutors
under the OMB-DOJ circular is a mere superfluity. The DOJ Panel
need not be authorized nor deputized by the Ombudsman to
conduct the preliminary investigation for complaints filed with it
because the DOJ’s authority to act as the principal law agency of
the government and investigate the commission of crimes under the
Revised Penal Code is derived from the Revised Administrative Code
which had been held in the Natividad case citation omitted as not
being contrary to the Constitution. Thus, there is not even a need to
delegate the conduct of the preliminary investigation to an agency
which has the jurisdiction to do so in the first place. However, the
Ombudsman may assert its primary jurisdiction at any stage of the
investigation. (Emphasis supplied).
In Honasan II, although Senator Gregorio "Gringo" Honasan was a
public officer who was charged with coup d’etat for the occupation
of Oakwood on 27 July 2003, the preliminary investigation therefor
was conducted by the DOJ. Honasan questioned the jurisdiction of
the DOJ to do so, proferring that it was the Ombudsman which had
jurisdiction since the imputed acts were committed in relation to
his public office. We clarified that the DOJ and the Ombudsman
have concurrent jurisdiction to investigate offenses involving public
officers or employees. Nonetheless, we pointed out that the
Ombudsman, in the exercise of its primary jurisdiction over cases
cognizable by the Sandiganbayan, may take over, at any stage, from
any investigating agency of the government, the investigation of
such cases. Plainly, applying that ruling in this case, the
Ombudsman has primary jurisdiction, albeit concurrent with the
DOJ, over Rosa’s complaint, and after choosing to exercise such
jurisdiction, need not defer to the dictates of a respondent in a
complaint, such as Alfredo. In other words, the Ombudsman may
exercise jurisdiction to the exclusion of the DOJ.

Third. Alfredo next argues that Rosa had pardoned his

concubinage, having admitted to knowing of his womanizing and
yet continuing with their relationship as demonstrated in Rosa’s
annual visits to him in Davao City.

We are not convinced.

Old jurisprudence has held that the cynosure in the question of

whether the wife condoned the concubinage lies in the wife’s "line of
conduct under the assumption that she really believed [her
husband] guilty of concubinage:"
Condonation is the forgiveness of a marital offense constituting a
ground for legal separation or, as stated in I Bouver's Law
Dictionary, p. 585, condonation is the ‘conditional forgiveness or
remission, by a husband or wife of a matrimonial offense which the
latter has committed.’

xxxx

A detailed examination of the testimony of the plaintiff-husband,

especially those portions quoted above, clearly shows that there was
a condonation on the part of the husband for the supposed ‘acts of
rank infidelity amounting to adultery’ committed by defendant-wife.
Admitting for the sake of argument that the infidelities amounting
to adultery were committed by the defendant, a reconciliation was
effected between her and the plaintiff. The act of the latter in
persuading her to come along with him, and the fact that she went
with him and consented to be brought to the house of his cousin
Pedro Bugayong and together they slept there as husband and wife
for one day and one night, and the further fact that in the second
night they again slept together in their house likewise as husband
and wife — all these facts have no other meaning in the opinion of
this court than that a reconciliation between them was effected and
that there was a condonation of the wife by the husband. The
reconciliation occurred almost ten months after he came to know of
the acts of infidelity amounting to adultery.

In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has

been held that ‘condonation is implied from sexual intercourse after
knowledge of the other infidelity. Such acts necessarily implied
forgiveness. It is entirely consonant with reason and justice that if
the wife freely consents to sexual intercourse after she has full
knowledge of the husband's guilt, her consent should operate as a
pardon of his wrong.’
In Tiffany’s Domestic and Family Relations, section 107 says:

‘Condonation. Is the forgiveness of a marital offense constituting a

ground for divorce and bars the right to a divorce. But it is on the
condition, implied by the law when not express, that the wrongdoer
shall not again commit the offense; and also that he shall thereafter
treat the other spouse with conjugal kindness. A breach of the
condition will revive the original offense as a ground for divorce.
Condonation may be express or implied.’

It has been held in a long line of decisions of the various supreme

courts of the different states of the U. S. that 'a single voluntary act
of sexual intercourse by the innocent spouse after discovery of the
offense is ordinarily sufficient to constitute condonation, especially
as against the husband'. (27 Corpus Juris Secundum, section 61
and cases cited therein).

In the lights of the facts testified to by the plaintiff-husband, of the

legal provisions above quoted, and of the various decisions above-
cited, the inevitable conclusion is that the present action is
untenable.

Although no acts of infidelity might have been committed by the

wife, We agree with the trial judge that the conduct of the plaintiff-
husband above narrated despite his belief that his wife was
unfaithful, deprives him, as alleged the offended spouse, of any
action for legal separation against the offending wife, because his
said conduct comes within the restriction of Article 100 of the Civil
Code.
The only general rule in American jurisprudence is that any
cohabitation with the guilty party, after the commission of the
offense, and with the knowledge or belief on the part of the injured
party of its commission, will amount to conclusive evidence of
condonation; but this presumption may be rebutted by evidence (60
L. J. Prob. 73).18

Although the foregoing speaks of condonation of concubinage as a

ground for legal separation, the holding therein applies with equal
force in a prosecution for concubinage as a felony. Indeed, Rosa’s
admission was that she believed her husband had stopped
womanizing, not that she had knowledge of Alfredo’s specific acts of
concubinage with Sia and de Leon, specifically keeping them in the
conjugal dwelling. This admission set against the specific acts of
concubinage listed in Article 33419 of the Revised Penal Code does
not amount to condonation. Their continued cohabitation as
husband and wife construed from Rosa’s annual visits to Davao
City is not acquiescence to Alfredo’s relations with his concubines.
On that score, we have succinctly held:

We can find nothing in the record which can be construed as

pardon or condonation. It is true that the offended party has to a
considerable extent been patient with her husband's shortcomings,
but that seems to have been due to his promises of improvement;
nowhere does it appear that she has consented to her husband's
immorality or that she has acquiesced in his relations with his
concubine.20

Fourth. Alfredo next grasps at Liza S. Diambangan’s affidavit of

recantation to eliminate his probable culpability for concubinage.

Again, we are not swayed by Alfredo’s asseverations.

We have generally looked with disfavor upon retraction of
testimonies previously given in court. Affidavits of recantation are
unreliable and deserve scant consideration. The asserted motives
for the repudiation are commonly held suspect, and the veracity of
the statements made in the affidavit of repudiation are frequently
and deservedly subject to serious doubt.21

In Firaza v. People, we intoned:

Merely because a witness says that what he had declared is false

and that what he now says is true, is not sufficient ground for
concluding that the previous testimony is false. No such reasoning
has ever crystallized into a rule of credibility. The rule is that a
witness may be impeached by a previous contradictory statement x
x x not that a previous statement is presumed to be false merely
because a witness now says that the same is not true. The
jurisprudence of this Court has always been otherwise, i.e., that
contradictory testimony given subsequently does not necessarily
discredit the previous testimony if the contradictions are
satisfactorily explained. [Citations omitted].

Indeed, it is a dangerous rule to set aside a testimony which has

been solemnly taken before a court of justice in an open and free
trial and under conditions precisely sought to discourage and
forestall falsehood simply because one of the witnesses who had
given the testimony later on changed his mind. Such a rule will
make solemn trials a mockery and place the investigation of the
truth at the mercy of unscrupulous witnesses. Unless there be
special circumstances which, coupled with the retraction of the
witness, really raise doubt as to the truth of the testimony given by
him at the trial and accepted by the trial judge, and only if such
testimony is essential to the judgment of conviction, or its
elimination would lead the trial judge to a different conclusion, an
acquittal of the accused based on such a retraction would not be
justified.22

In this case, Liza S. Diambangan’s testimony merely corroborates

the still standing story of Robert and Melissa Diambangan, the
other helper in the Busuego household. Clearly, the two’s
consistent story may still be the basis of the Ombudsman’s finding
of a prima facie case of concubinage against Alfredo and Sia.

Finally. Despite his vigorous arguments, Alfredo claims that there is

simply no basis for indicting him and Sia for concubinage.

Article 334 of the Revised Penal Code lists three (3) specific acts of
concubinage by a husband:

(1) keeping a mistress in the conjugal dwelling; (2) sexual

intercourse, under scandalous circumstances, with a woman who is
not his wife; and (3) cohabiting with a woman who is not his wife in
any other place.

The Ombudsman found a prima facie case against Alfredo and Sia
based on the testimony of Robert, Melissa S. Diambangan and Liza
S. Diambangan that Alfredo had kept Sia in the conjugal dwelling
where Sia even stayed at the conjugal room. We completely agree
with the Ombudsman’s disquisition:

x x x. It is ingrained in human behavior that a child has love,

respect and loyalty to his family and would strive to keep the family
harmonious and united. This is the very reason why Robert did not
inform his mother about his father’s infidelities during the time
when his father was keeping his mistress at the conjugal dwelling.
A son would never turn against his father by fabricating such a
serious story which will cause his home to crumble, if such is not
true. His natural instinct is to protect his home, which he did when
he kept silent for a long time. What broke the camel’s back was the
abusive treatment he allegedly suffered and the thought that things
would change for the better if his mom would intervene.

The story of Robert in his Affidavit was reinforced by the two house
helpers Melissa S. Diambangan and Liza S. Diambangan, who were
employed by the family. Melissa was with the Busuego family in
their conjugal home in 1997. She left the family in 2005 but
returned in 2006.1âwphi1 Liza started working with the family in
2002. Melissa revealed that it was Emy Sia who recruited her to
work with the Busuego family. They both attested to the fact that
Alfredo and Emy Sia slept together in the bedroom of Alfredo but
Emy Sia would sleep in the maid’s quarter when Rosa and Alfred
came home for a visit in 1997. They recalled that Emy Sia calls
Alfredo "papa". They narrated that Emy Sia would even confide to
them some private matters relating to her sexual proclivities with
Alfredo.23

We further note that the presence of Sia at the Busuego household

and her interim residence thereat was not disputed nor explained.
Alfredo just cavalierly declares that Sia may have stayed in the
conjugal dwelling, but never as his mistress, and Sia supposedly
slept in the maids’ quarters.

While such a claim is not necessarily preposterous we hold that

such is a matter of defense which Alfredo should raise in court
given that Rosa s complaint and its accompanying affidavits have
created a prima facie case for Concubinage against Alfredo and Sia.
WHEREFORE the petition is DISMISSED The Resolutions of the
Ombudsman dated 17 April 2009 and 11 October 2010 are
AFFIRMED.

SO ORDERED.

OLD CASES:

EN BANC
Topic: Meaning of cohabitation
G.R. No. 18513 September 18, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
PEDRO PITOC AND MARCIANA DEL BASCO, defendants.
PEDRO PITOC, appellant.

Mendoza & Barrios and Alfredo Calupitan for appellant.

Attorney-General Villa-Real for appellee.

STATEMENT

February 21, 1921, the defendant, Pedro Pitoc, was legally married
to Petronila Roque in the city of Manila. For several years prior to
their marriage, the defendant, Pedro Pitoc, had sustained illicit
relations with Marcians del Basco. In a short time after the
marriage, the defendant, Pedro Pitoc, and his wife left the city of
Manila and went to Calumpit, Bulacan, to reside. Later Pedro Pitoc
returned to Manila, leaving his wife at Calumpit, promising to
return March 15, 1921. For his failure to return on March 17,
1921, his wife came to Manila to look for him, and later with Angel
Roque verified the following complaint against her husband and his
paramour:

For the purposes of the law establishing divorce, the undersigned

denounce and accuse Pedro Pitoc and Marciana del Basco of the
crime of concubinage, committed as follows:

That on or about the 23d day of June, 1921, and for some time
prior to this date, in the city of Manila, Philippine Islands, the said
accused, Pedro Pitoc, being legally married to the undersigned,
Petronila Roque, voluntarily, illegally and criminally cohabited, lied
and had sexual intercourse with his coaccused, Marciana del
Basco, who voluntarily, illegally and criminally cohabited, lied and
had sexual intercourse with the said Pedro Pitoc, knowing that her
coaccused was legally united by marriage with the complaint
referred to.

Contrary to law.

They were both found guilty as charged. Pedro Pitoc was sentenced
to one year, eight months and twenty-one days of prision
correccional with the accessory penalties provided by law, and to
pay one-half of the costs, from which he appeals, claiming that the
evidence was not sufficient to prove him guilty of the crime of
concubinage, beyond a reasonable doubt, and that there was no
evidence that the crime was committed "under scandalous
circumstances." His codefendant did not appeal.
JOHNS, J.:

The questions involved here is the legal construction of article 437

of the Penal Code and the amendment thereof by section 1 of Act
No. 2716, as they both relate to Act No. 2710.

Article 437, as originally enacted, reads as follows:

Any married man who shall keep a mistress in the conjugal

dwelling, or under scandalous circumstances elsewhere, shall suffer
the penalty of prision correccional in its minimum and medium
degrees.

The mistress shall suffer the penalty of destierro.

The provisions of articles four hundred thirty-four and four

hundred and thirty-five shall be applied in the cases falling under
this article."

Section 1 of Act No. 2716 reads as follows;

Article four hundred and thirty-seven of the Penal Code is hereby

amended by inserting at the end thereof the following:

"For the purposes of the law establishing divorce, the husband who,
not being included in the preceding cases, cohabits with a woman
who is not his wife, shall be considered guilty of concubinage and
shall be punished with the penalty prescribed in this section for the
crime of concubinage."

It is not claimed that the defendant Pitoc kept a mistress in the

conjugal dwelling, and the evidence is not sufficient to prove,
beyond a reasonable doubt, that he kept a mistress, under
"scandalous circumstances," at any other place.

Section 1 of Act No. 2716, as it amends article 437 of the Penal

Code, is very awkwardly worded, and is apparently misleading. But
in the final analysis its meaning its clear. It will be noted that
article 437 specified two different grounds for invoking the penalty
of prision correccional. First, that if any married man keeps a
mistress in his conjugal dwelling, or, second, if he shall keep a
mistress anywhere else under "scandalous circumstances," then he
shall be guilty of the specified crime. The purpose and intent of the
amendment was to add a third ground for the commission of the
crime. When analyzed, the two acts should read. First, that, if any
married man shall keep a mistress in his conjugal dwelling or
second, should keep a mistress elsewhere under "scandalous
circumstance," or, third, if he should "cohabit with a woman who is
not his wife." In either event, he would then be guilty of the crime
charged in article 437, and a conviction of either one of them would
be sufficient to entitle a spouse to a divorce under the provisions of
Act No. 2710.

Although the words used in the amendment "for the purposes of the
law establishing divorce" are intended to be explanatory, they are
not words of limitation, and are more or less surplusage. That is to
say, if a husband cohabits with a woman who is not his wife, he is
guilty of the crime of concubinage, regardless of whether show
wants a divorce or not. The crime is not contingent upon anything
the wife may do or may not do. The crime consists in the
commission of anyone of the three specified grounds, neither of
which is dependent upon the purpose or intent of the wife to obtain
a divorce.

Hence, the question involved here is whether within the meaning of

the law, the defendant cohabited "with a woman who is not his
wife."

The word cohabit has many different meanings, each depending

upon the sense in which it is used. Here, we have a law intended to
prohibit a married man from keeping a mistress in his dwelling or
anywhere else under "scandalous circumstances." Hence, the
meaning of the word cohabit here must relate and he confined to
the subject matter of the law itself. When used in that sense, it
should be construed to mean "to dwell or live together as husband
and wife; to live together as husband and wife although not legally
married; to live together in the same house, claiming to be married;
to live together at bed and board." (Corpus Juris, vol., 11, p. 950.)

Words and Phrases, vol., 2, page 1243, says:

"Cohabit" means, according to Webster, first, to dwell with another

in the same place; second, to live together as husband and wife.

Bishop, in his work on Marriage, Divorce, and Separation, par.

1669, says to "cohabit" is to dwell together, so that matrimonial
cohabitation is the living together of a man and woman ostensibly
as husband and wife.

The word "cohabit" is said to mean to dwell or live together as

husband and wife. And as used in Pub. St. c. 207, par. 4, providing
that whoever, having a former wife living, marries another or
continues to cohabit with such second wife, is guilty of bigamy, etc.

"Obviously the legal sense of the term, as used in Act 1877-78, p.

302, c. 7, par. 7, making it criminal for persons not married to
cohabit together, is to live together in the same house as married
persons living together or in the manner of husband and wife."

To "cohabit," according to the sense in which the word is used in a

penal statute, means dwelling together as husband and wife, or in
sexual intercourse, and comprises a continued period of time.
Hence the offense is not the single act of adultery; it is cohabiting in
a state of adultery; and it may be a week, a month, a year, or
longer, but still it is one offense only.

To "cohabit" means to dwell together, inhabit or reside in company,

or in the same place or country. Specifically, "to dwell or live
together as husband and wife," often with reference to persons not
legally married, and usually, but not always, implying sexual
intercourse. (Cox vs. State, 23 South., 806; 117 Ala., 103; 41
L.R.A., 760; 67 Am. St. Rep., 166 [quoting Cent. Dict.].)

Applying the facts to such definition, it is undisputed that before

his marriage to Petronila Roque, the defendant and his coaccused
were living together for a number of years in illicit relations. The
defendants, Pedro Pitoc, legally married Petronila Roque in the city
of Manila on February 21, 1921, and together they went to
Calumpit, Bulacan, to live. In a short time he left his wife there and
came to Manila, promising to return on March 15, twenty-three
days after their marriage. He never did return. March 17, his wife
came to Manila where she found the defendant living in the same
house and under the same roof with his former paramour, staying
around her store and keeping company with her, under
circumstances which strongly tend to show that they had resumed
their former relations. It is, indeed, significant that the defendant
Pitoc would leave his wife whom he married on February 21, and
return to Manila and go direct to, and obtain a room in, the same
house where his former paramour was living, and violate his
promise to return tho his newly wedded wife on March 15.

Petronila Roque testified that she asked her husband if that

woman, meaning his coaccused, was his paramour, and that he
answered yes, and that she asked him what would be her situation
and "he answered me that he could not abandon that woman,
referring to Marciana del Basco, and that I could do anything I
pleased."

This evidence was not denied by the defendant, Pedro Pitoc. When
this is considered with the defendant's conduct and all the other
evidence, surrounding facts and circumstances, the proof is
conclusive that the defendant, Pedro Pitoc, did cohabit "with a
woman who is not his wife," and that he is guilty of the crime
charged.

EN BANC
Topic: Pardon in Concubinage
G.R. No. L-48183 November 10, 1941

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.

RODOLFO A. SCHNECKENBURGER, ET AL., Defendants-
Appellants.

Cardenas & Casal for appellants.

Office of the Solicitor-General Ozaeta and Acting Solicitor
Luciano for appellee.

MORAN, J.:

On March 16, 1926, the accused Rodolfo A. Schneckenburger

married the compliant Elena Ramirez Cartagena and after seven
years of martial life, they agreed, for reason of alleged
incompatibility of character, to live separately each other and on
May 25, 1935 they executed a document which in part recites as
follows:

Que ambos comparecientes convienen en vivir separados el uno del

otro por el resto de su vida y se comprometen, y obligan
reciprocamente a no molastarse ni intervenir ni mezclarse bajo
ningun concepto en la vida publica o privada de los mismos, entre
si, quendado cada uno de los otorgantes en completa libertad de
accion en calquier acto y todos concepto.

On June 15, 1935, the accused Schneckenburger, without leaving

the Philippines, secured a decree of divorce from the civil court of
Juarez, Bravos District, State of Chihuahua, Mexico. On May 11,
1936, he contracted another marriage with his co-accused, Julia
Medel, in the justice of the peace court of Malabon, Rizal, and since
then they lived together as husband and wife in the city of Manila.
Because of the nullity of the divorce decreed by the Mexico Court,
complaint herein instituted two actions against the accused, one for
bigamy in the Court of First Instance of Rizal and the other
concubinage in the court of First Instance of Manila. The first
culminated in the conviction of the accused for which he was
sentenced to penalty of two months and one day of arresto mayor.
On the trial for the offense of concubinage accused interposed the
plea of double jeopardy, and the case was dismissed; but, upon
appeal by the fiscal, this Court held the dismissal before the trial to
be premature this was under the former procedure and without
deciding the question of double jeopardy, remanded the case to the
trial court for trial on the merits. Accused was convicted of
concubinage through reckless imprudence and sentenced to a
penalty of two months and one day of arresto mayor. Hence this
appeal.chanroblesvirtualawlibrary chanrobles virtual law library

As to appellant's plea of double jeopardy, it need only be observed

that the office of bigamy for which he was convicted and that of
concubinage for which he stood trial in the court below are two
distinct offenses in law and in fact as well as in the mode of their
prosecution. The celebration of the second marriage, with the first
still existing, characterizes the crime of bigamy; on the other hand,
in the present case, mere cohabitation by the husband with a
woman who is not his wife characterizes the crime of concubinage.
The first in an offense against civil status which may be prosecuted
at the instance of the state; the second, an offense against chastity
and may be prosecuted only at the instance of the offended party.
And no rule is more settled in law than that, on the matter of
double jeopardy, the test is not whether the defendant has already
been tried for the same act, but whether he has been put in
jeopardy for the same offense. (Diaz v. U. S., 223 U. S., 422; People
v. Cabrera, 43 Phil., 82)

Upon the other hand, we believe and so hold that the accused
should be acquitted of the crime of concubinage. The document
executed by and between the accused and the complaint in which
they agreed to be "en completa libertad de accion en cualquier acto
y en todos conceptos," while illegal for the purpose for which it was
executed, constitutes nevertheless a valid consent to the act of
concubinage within the meaning of section 344 of the Revised Penal
Code. There can be no doubt that by such agreement, each party
clearly intended to forego to illicit acts of the other.

We said before (People vs. Guinucod, 58 Phil., 621) that the consent
which bars the offended party from instituting a criminal
prosecution in cases of adultery, concubinage, seduction,
abduction, rape and acts of lasciviousness is that which has been
given expressly or impliedly after the crime has been committed. We
are now convinced that this is a narrow view in way warranted by
the language, as well as the manifest policy, of the law. The second
paragraph of article 344 of the Revised Penal Code provides:

The offended party cannot institute criminal prosecution without

including both the guilty parties, if they are both alive, nor, in any
case, if he shall have consented or pardoned the offenders.
(Emphasis ours.)

As the term "pardon" unquestionably refers to the offense after its

commission, "consent" must have been intended agreeably with its
ordinary usage, to refer to the offense prior to its commission. No
logical difference can indeed be perceived between prior and
subsequent consent, for in both instances as the offended party has
chosen to compromise with his/her dishonor, he/she becomes
unworthy to come to court and invoke its aid in the vindication of
the wrong. For instance, a husband who believers his wife another
man for adultery, is as unworthy, if not more, as where, upon
acquiring knowledge of the adultery after its commission, he says or
does nothing. We, therefore, hold that the prior consent is as
effective as subsequent consent to bar the offended party from
prosecuting the offense.
In this arriving at this conclusion we do not with to be
misconstrued as legalizing an agreement to do an illicit act, in
violation of law. Our view must be taken only to mean that an
agreement of the tenor entered into between the parties herein,
operates, within the plain language and manifest policy of the law,
to bar the offended party from prosecuting the offense. If there is
anything morally condemnatory in a situation of his character, the
remedy lies not with us but with the legislative department of the
government. What the law is, not what it should be, defines the
limits of our authority.

Judgment is reversed and the accused is hereby acquitted, without

costs.

G.R. No. L-47756 June 10, 1941

Topic: meaning of cohabitation
LUIS OCAMPO, Petitioner, vs. THE PEOPLE OF THE
PHILIPPINES, Respondent.

Manley & Reyes for petitioner.

First Assistant Solicitor-General Reyes and Solicitor Rosal for
appellee.

MORAN, J.:

Charged with one Igmedia Refe of the crime of concubinage in the

Court of First Instance of Albay, petitioner Luis Ocampo was found
guilty and sentenced to an indeterminate penalty of from six (6)
months of arresto mayor to two (2) years, eleven (11) months and
ten (10) days of prision correccional, and to the accessories of the
law. This judgment was affirmed by the Court of
Appeals.chanroblesvirtualawlibrary chanrobles virtual law library

The illicit relations between petitioner Luis Ocampo and his

coaccused Igmedia Refe began in 1937. In September of that year,
petitioner with Igmedia went to Naga where they dwelt together as
husband and wife in the same house and where often seen together
attending shows and dances. In October of the same year, they
went for a thermal bath in Tiwi, Albay, where, in the first visit, they
stayed for three days, and in the second, for four days. During their
entire stay, they dwelt together as husband wife in the house of one
Alfonsa Toledo, occupying one room where they slept alone.

The legal question raised in this appeal is whether, on the basis of

the foregoing facts, petitioner may properly be held guilty of
concubinage.

Under the provisions of article 334 of the Revised Penal Code,

concubinage may be committed in either of the following ways:(1) by
keeping a mistress in the conjugal dwelling; (2) by having sexual
intercourse, under scandalous circumstances, with a woman who is
not his wife; and (3) by cohabiting with such woman in any other
place.

We are here concerned only with the third way of committing the
offense under which petitioner was convicted. The term "cohabit"
means to dwell together, in the manner of husband and wife, for
some period of time, as distinguished from occasional, transient
interviews for unlawful intercourse. (People vs. Pitoc, 43 Phil., 758.)
And, whether an association, for illicit intercourse, has been such
as to constitute an unlawful assumption of the conjugal relation, is,
in every case a question of fact (74 A. L. R., 1363), and the extent of
such association as to constitute a cohabitation within the meaning
of the law, is a matter of court's appreciation.
In the instant case, petitioner's conduct with his coaccused was not
confined to isolated interviews for unlawful intercourse. He and his
coaccused dwelt together as husband and wife in the same house in
Naga, Camarines Sur, where they were seen attending shows and
dances; again, in Tiwi, Albay, they dwelt together as husband and
wife in the same house for seven days and nights where they slept
together and alone in one room. We are of the opinion and so hold
that such association is sufficient to constitute a cohabitation
within the meaning of the law even disregarding proofs of actual
sexual intercourse.

Petitioner maintains that the letter (Exhibit 2) sent to him by

complainant in the latter part of June, 1937, constitutes consent to
his illicit relations and is, therefore, a condonation within the
provisions of the second paragraph of article 344 of the Revised
Penal Code. The letter was construed by the trial court under the
facts and circumstances of the case as not constituting consent or
condonation, and this finding has not been reversed by the Court of
Appeals. At this stage of the proceeding we cannot review the
finding which involves questions of fact.

Judgment is affirmed, with costs against petitioner.

G.R. No. 88232 February 26, 1990

Topic: Jurisdiction in concubinage cases
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. HENEDINO P. EDUARTE, in his capacity as Acting
Presiding Judge of the RTC, Br. 22, Cabagan, Isabela; ELVINO
AGGABAO and VILLA SURATOS, respondents.

Marallag & Marallag for Alma Aggabao.

Josefin De Alban Law Office for private respondents.

RESOLUTION

CORTES, J.:

Assailed in this petition is the order of the Regional Trial Court of

Cabagan, Isabela, Branch 22, dismissing the criminal information
for concubinage filed against private respondents, on the ground of
lack of jurisdiction. The antecedent facts are as follows:

Upon complaint by Alma T. Aggabao, the Office of the Provincial

Fiscal of Cabagan, Isabela filed on July 25, 1986 with the Regional
Trial Court of Cabagan, Isabela, Branch 22, an information against
private respondents Elvino Aggabao and Villa Suratos for the crime
of concubinage [Annex "A" to the Petition; Rollo, p. 17.] allegedly
committed in September 1983. Upon being arraigned, private
respondents entered a plea of not guilty [Annex "B" to the Petition;
Rollo, p. 19]. The complainant was represented before the trial court
by a private prosecutor. During the trial, private respondents filed a
motion to dismiss on the ground of lack of jurisdiction. They argued
that concubinage, under Art. 334 of the Revised Penal Code (RPC) is
punishable with prision correccional in its minimum and medium
periods, which is equivalent to imprisonment of six (6) months and
one (1) day to four (4) years and two (2) months, well within the
exclusive original jurisdiction of the Municipal Trial Court, and not
of the Regional Trial Court. The prosecution filed an opposition to
the motion contending that the Regional Trial Court has jurisdiction
over the crime of concubinage because destierro, the imposable
penalty on the concubine [Art. 334, RPC] has a duration of six (6)
months and one (1) day to six (6) years [Art. 27, RPC]. The trial
court sustained private respondent's position and granted the
motion to dismiss.

Private prosecutor, together with the assistant provincial prosecutor

of Ilagan, Isabela, filed on June 16, 1989 the instant petition
assailing the order of the trial court granting the motion to dismiss
the criminal information against private respondents. In a
resolution dated July 17, 1989, this Court denied the petition due
to late payment of docket and legal research fees and for lack of
merit. The Solicitor General filed a motion for reconsideration of the
order of the Court denying the petition. Subsequently, the private
prosecutor filed a separate motion for reconsideration. In these
motions, the Solicitor General and the private prosecutor submitted
additional arguments to support their position that the Regional
Trial Court has jurisdiction over the crime of concubinage.

At the outset, it must be stated that the petition is defective since it

was not filed by the Solicitor General. Instead, it was filed by the
private prosecutor and the assistant provincial prosecutor of Ilagan,
Isabela, with the offended party, Alma T. Aggabao, being named co-
petitioner of the People of the Philippines. The Court has already
ruled that while it is the fiscal who represents the People of the
Philippines in the prosecution of offenses before the trial courts,
when such criminal actions are brought to the Court of Appeals or
to the Supreme Court, it is the Solicitor General who must
represent the People of the Philippines, not the fiscal [City Fiscal of
Tacloban v. Espina, G.R. No. 83996, October 21, 1988, 166 SCRA
614] nor the private prosecutor, even with the conformity of the
assistant provincial prosecutor [People v. Dacudao, G.R. No. 81389,
February 21, 1989]. Nevertheless, considering that the Solicitor
General has intervened in this case by filing a motion for
reconsideration of the Court resolution dated July 17, 1989 denying
the petition, the Court has decided to forego technicalities and to
resolve the issues raised. Moreover, since it is now apparent that
the only petitioner in this case is the People of the Philippines as
represented by the Solicitor General, payment of the legal fees is not
necessary in accordance with Rule 141, Sec. 16 of the Revised
Rules of Court.

Petitioner first contends that private respondents are estopped from

raising the issue of jurisdiction after the prosecution has rested its
case and the defense has started to present its evidence.
Furthermore, petitioner complains that "it took two (2) years and six
(6) months before anyone to take (sic) notice of the jurisdictional
infirmity [Petition, p. 5; Rollo, p. 12]. Hence, according to petitioner,
private respondents are barred from raising the issue of
jurisdiction, estoppel having already set in.

The contention is without merit. In our legal system, the question of

jurisdiction may be raised at any stage of the proceedings [Rule
117, Sec. 8, Revised Rules on Criminal Procedure; U.S. v.
Castanares, 18 Phil. 210 (1911)]. It is true that in Vera v. People,
G.R. No. L-31218, February 18, 1970, 31 SCRA 711 and in People
v. Munar, G.R. No. L-37642, October 22, 1973, 53 SCRA 278, cases
cited by the Solicitor General and private prosecutor in their
pleadings, the Court held that jurisdiction cannot be raised for the
first time on appeal. However, these cases can readily be
distinguished from the case at bar by the fact that the issue of
jurisdiction was raised only on appeal. In the instant case, the
private respondents made the jurisdictional challenge pending the
trial and before the trial court has rendered any judgment on the
merits.

Moreover, the ruling in Vera v. People and People v. Munar that

jurisdiction may not be raised for the first time on appeal, is the
exception rather than the general rule.

The doctrine in those cases was first enunciated in Tijam v.

Sibonghanoy, G.R. No. L-21450, April 15, 1968, 23 SCRA 29, 35-
36, where the Court stated that:

. . . a party can not invoke the jurisdiction of a court to secure

affirmative relief against his opponent and, after obtaining or failing
to obtain such relief, repudiate or question that same jurisdiction
(Dean vs. Dean, 136 Or. 694, 86 A.L.R. 79). In the case just cited,
by way of explaining the rule, it was further said that the question
whether the court had jurisdiction either of the subject- matter of
the action or of the parties is barred from such conduct not because
the judgment or order of the court is valid and conclusive as an
adjudication, but for the reason that such a practice can not be
tolerated — obviously for reasons of public policy.

Furthermore, it has also been held that after voluntarily submitting

a cause and encountering an adverse decision on the meats, it is
too late for the loser to question the jurisdiction or power of the
court ... And in Littleton vs. Burges, 16 Wyo. 58, the Court said that
it is not right for a party who has affirmed and invoked the
jurisdiction of a court in a particular matter to secure an affirmative
relief, to afterwards deny that same jurisdiction to escape a penalty.
In Calimlim v. Ramirez, G.R. No. L-34362, November 19, 1982, 118
SCRA 399 [See also Dy v. NLRC, G.R. No. 68544, October 27, 1986,
145 SCRA 211], the Court held that the ruling in Tijam v.
Sibonghanoy is an exception to the general rule that the lack of
jurisdiction of a court may be raised at any stage of the
proceedings, even on appeal. The Court stated further that Tijam v.
Sibonghanoy is an exceptional case because of the presence of
laches. The Court said:

A rule that had been settled by unquestioned acceptance and

upheld in decisions so numerous to cite is that the jurisdiction of a
court over the subject-matter of the action is a matter of law and
may not be conferred by consent or agreement of the parties. The
lack of jurisdiction of a court may be raised at any stage of the
proceedings, even on appeal. This doctrine has been qualified by
recent pronouncements which stemmed principally from the ruling
in the cited case of Sibonghanoy. It is to be regretted, however, that
the holding in said case had been applied to situations which were
obviously not contemplated therein. The exceptional circumstance
involved in Sibonghanoy which justified the departure from the
accepted concept of non-waivability of objection to jurisdiction has
been ignored and, instead a blanket doctrine had been repeatedly
upheld that rendered the supposed ruling in Sibonghanoy not as
the exception, but rather the general rule, virtually overthrowing
altogether the time-honored principle that the issue of jurisdiction
is not lost by waiver or by estoppel.

In Sibonghanoy, the defense of lack of jurisdiction of the court that

rendered the questioned ruling was held to be barred by estoppel by
laches. It was ruled that the lack of jurisdiction having been raised
for the first time in a motion to dismiss filed almost fifteen (15)
years after the questioned ruling had been rendered, such a plea
may no longer be raised for being barred by laches. As defined in
said case, laches is "failure or neglect, for an unreasonable and
unexplained length of time, to do that which, by exercising due
diligence, could or should have been done earlier; it is negligence or
omission to assert a right within a reasonable time, warranting a
presumption that the party entitled to assert has abandoned it or
declined to assert it.

The circumstances of the present case are very different from Tijam
v. Sibonghanoy No judgment has yet been rendered by the trial
court in this case. And as soon as the accused discovered the
jurisdictional defect, they did not fail or neglect to file the
appropriate motion to dismiss. Hence, finding the pivotal element of
laches to be absent, the Court holds that the ruling in Tijam v.
Sibonghanoy, Vera v. People and People v. Munar does not control
the present controversy. Instead, the general rule that the question
of jurisdiction of a court may be raised at any stage of the
proceedings, must apply. Private respondents are not estopped from
questioning the jurisdiction of the trial court.

Having disposed of the procedural issue, the Court will now proceed
with the main issue of whether or not the Regional Trial Court has
original jurisdiction over the crime of concubinage.

The crime of concubinage is penalized by Art. 334 of the Revised

Penal Code which reads as follows:

Art. 334. Concubinage. — Any husband who shall keep a mistress

in the conjugal dwelling, or, shall have sexual intercourse, under
scandalous circumstances, with a woman who is not his wife, or
shall cohabit with her in any other place shall be punished by
prision correccional in its minimum and medium periods.
The concubine shall suffer the penalty of destierro. (Emphasis
supplied.)

According to Sec. 32 of B.P. Blg. 129, otherwise known as the

Judiciary Reorganization Act of 1980, the Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial Courts
(hereinafter referred to as the inferior courts) shall exercise
"[e]xclusive original jurisdiction over all offenses punishable with
imprisonment of not exceeding four years and two months, or a fine
of not more than four thousand pesos, or both such fine and
imprisonment, regardless of other imposable accessory or other
penalties, including the civil liability arising from such offenses or
predicated thereon, irrespective of kind, nature, value or amount
thereof . . ." On the other hand, the "Regional Trial Courts shall
exercise exclusive original jurisdiction in all criminal cases not
within the exclusive jurisdiction of any court, tribunal, or body. . ."
[Sec. 20. B.P. Blg. 129].

The penalty imposable on the husband who commits concubinage

is prision correccional in its minimum and medium periods, which
ranges from six (6) months and one (1) day to four (4) years and two
(2) months. Hence, as regards the husband, there is no question
that concubinage is within the exclusive original jurisdiction of the
inferior courts. The problem concerns the concubine upon whom
the imposable penalty is destierro.

The Solicitor General and the private prosecutor point out that the
duration of destierro, which is between six (6) months and one (1)
day to six (6) years [Art. 27, RPC], is beyond the jurisdiction of the
inferior courts to impose. Thus, they conclude that either (1) the
Regional Trial Courts and the inferior courts have concurrent
jurisdiction over the crime of concubinage [Solicitor General's
Motion for Reconsideration, p. 11; Rollo, p. 521; or (2) the Regional
Trial Courts and the inferior courts have "split jurisdiction," the
latter having jurisdiction over the crime as regards the husband
and the former as regards the concubine [Private Prosecutor's
Motion for Reconsideration, p. 3; Rollo, p. 58].

These propositions are both untenable. It has already been held by

the Court in Uy Chin Hua v. Dinglasan, 86 Phil. 617 (1950) and
People v. Santos, 87 Phil. 687 (1950) that a crime punishable with
the penalty of destierro is within the jurisdiction of the inferior
courts. This is so because in the scale of penalties outlined in Art.
71, destierro comes after arresto mayor. * And since under the
Judiciary Act of 1948 [Republic Act No. 296], crimes punishable
with arresto mayor are within the jurisdiction of the inferior courts,
it follows that crimes punishable with destierro are also within the
jurisdiction of such courts. In explaining its conclusion that
destierro is lighter than arresto mayor and therefore cognizable by
the inferior courts, the Court, in Uy Chin Hua v. Dinglasan, supra
at p. 619, stated the following:

Destierro is not a higher penalty than arresto mayor. Arresto mayor

means imprisonment or complete deprivation of liberty, whereas
destierro means banishment or only a prohibition from residing
within a radius of 25 kilometers from the actual residence of the
accused for a specified length of time. The respective severities of
arresto mayor and destierro must not be judged by the duration of
each of these penalties, but by the degree of deprivati n of liberty
involved. Penologists have always considered destierro lighter than
arresto mayor. Such criterion is reflected both in the old Spanish
Penal Code and in our Revised Penal Code. In the graduated scale
of article 71 the lawmaker has placed destierro below arresto
mayor. There is, therefore, no basis in fact or in law for holding that
destierro is a higher penalty than arresto mayor and that an offense
penalized with destierro falls under the jurisdiction of the court of
first instance.
The Court is well-aware of the fact that Uy Chin Hua v. Dinglasan
and People v. Santos were decided under the Judiciary Act of 1948
pursuant to which justices of the peace and judges of municipal
courts of chartered cities had original jurisdiction over "all offenses
in which the penalty provided by law is imprisonment for not more
than six months" [Sec. 87 (b)] while Courts of First Instance had
original jurisdiction "in all criminal cases in which the penalty
provided by law is imprisonment for more than six months" [Sec. 44
(f)]. There being no mention in said Act of crimes for which the
penalty is not imprisonment, these aforecited cases were decided on
the premise that "there exists a gap in the law as to which court
shall have original jurisdiction over offenses penalized with
destierro or banishment" [Uy Chin Hua v. Dinglasan, supra, at p.
620].

Under the Judiciary Reorganization Act of 1980 (B.P. Blg. 129), the
inferior courts shall exercise exclusive original jurisdiction over "all
offenses punishable with imprisonment of not exceeding four (4)
years and two (2) months [Sec. 32 (2)] while the Regional Trial
Courts shall have exclusive original jurisdiction" in all criminal
cases not within the exclusive jurisdiction of any court, tribunal or
body" [Sec. 20]. Ostensibly, Sec. 20 of B. P. Blg. 129 would grant to
the Regional Trial Courts jurisdiction over crimes punishable with
destierro, such as concubinage, since destierro is not an offense
punishable with imprisonment of not exceeding four (4) years and
two (2) months. However, the Court, after a careful reading of B.P.
Blg. 129, is of the considered opinion that there was no intention to
overturn the doctrine laid down in Uy Chin Hua v. Dinglasan and
People v. Santos. It is quite evident that among the important
factors considered in the allocation of jurisdiction between the
Regional Trial Courts and the inferior courts are the gravity of both
the offense and the imposable penalty. It is not, therefore
unreasonable to state that the legislature granted to the Regional
Trial Courts jurisdiction over crimes whose penalties are harsher
than those vested in the inferior courts. And since it is already a
settled rule that destierro, by its nature, is a lighter penalty than
imprisonment [Uy Chin Hua v. Dingalasan, supra], it follows that
even under the Judiciary Reorganization Act of 1980, jurisdiction
over crimes punishable with destierro is vested not in the Regional
Trial Courts but in the inferior courts.

More particularly in this case, the crime of concubinage has two

penalties, one for the husband and another for the concubine. The
penalty for the husband, prision correccional in its minimum and
medium periods, which ranges from six (6) months and one (1) day
to four (4) years and two (2) months, is unquestionably within the
jurisdiction of the inferior courts. Considering that Art. 344 of the
Revised Penal Code states that "[t]he offended party [in the crime of
concubinage] cannot institute criminal prosecution without
including both the guilty parties," it is clearly in the interest of the
orderly administration of justice that the concubine be tried with
the erring husband before the inferior courts. The legislature could
not have intended to allow the absurd situation wherein the inferior
court has jurisdiction over the crime of concubinage only as regards
the husband while the Regional Trial Court has jurisdiction over the
same crime with respect to the concubine.

In fine, the Court, after a careful consideration of the pertinent

laws, as well as the jurisprudence on the matter, holds that the
crime of concubinage is within the exclusive original jurisdiction of
the inferior courts. The Regional Trial Courts have no original
jurisdiction over the said crime. Hence, the court a quo committed
no reversible error in dismissing the criminal information against
private respondents. At any rate, considering that the dismissal of
the case by the court a quo on the ground of lack of jurisdiction is
not a bar to another prosecution for the same offense [Rule 117,
Secs. 6 and 7, Revised Rules on Criminal Procedure] and
considering further that the crime has not yet prescribed [See Art.
90, RPC], the offended wife is not precluded from initiating the filing
of another criminal information against private respondents before
the proper court.

WHEREFORE, the Court Resolved to DENY the petition for lack of

merit. The reimbursement of the legal fees paid by the private
prosecutor for the filing of this petition is hereby ORDERED.

G.R. No. L-29531 December 29, 1928

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
AGAPITO FRANCISCO and JOSEFINA MANTELO, defendants-
appellants.

Paredes, Buencamino and Yulo, and Casal and Jose for

appellants.
Attorney-General Jaranilla for appellee.

OSTRAND, J.:

On August 26, 1927, Patrocinio David de Francisco presented the

following complaint to the Court of First Instance of Manila:

For the effects of the law establishing divorce, the undersigned

denounces and accuses Agapito Francisco and Josefina Mantelo of
the crime of concubinage committed as follows:
That on or about August 25, 1927, and for several years prior to
that date, in the City of Manila, Philippine Islands, the said Agapito
Francisco, being legally married to the undersigned, voluntarily,
illegally, and criminally, cohabited and had sexual intercourse with
his coaccused, Josefina Mantelo, with whom he lived as husband
and wife during said period, with public scandal; that in said period
and place the said Josefina Mantelo, voluntarily, illegally, and
criminally, cohabited and had sexual intercourse with her
coaccused, the aforesaid Agapito Francisco, with whom she lived in
concubinage, with public scandal, knowing that said Agapito
Francisco was and is a married person, with infraction of the law.

(Sgd.) PATROCINIO DAVID DE FRANCISCO

Denunciante

It appears from the evidence that the complainant and the accused
Agapito Francisco, were legally married on February 1, 1910. On
December 30, 1922, the relations between the spouses became
stained due to the fact that the wife had ascertained that the
husband had maintained illicit relations with another woman, and
she threatened him with separation if he not mend his ways. The
husband promised improvement and, to demonstrate his sincerity,
confessed that he had two children with his codefendant, Josefina
Mantelo, and proposed that if she, the wife, would allow him to pay
P200 a month to said children, he would discontinue his relations
with Josefina. To this proposition the wife agreed and continued to
live with her husband until 1925, when they separated after
executing an agreement in writing to that effect. The agreement,
among other things, contains the following clauses:
"Whereas as it has become impossible for the husband and the wife
to live together due to the fact that the former has sustained
intimate relations with one Josefina Mantelo and that as a result of
said relations, a child, by the name of Josefina, was born on the
11th of June, 1921, and baptized in the Catholic Parochial Church
in Quiapo, Manila, on the 7th of January, 1923, and that another
child named Dolores Loreto was born on December 10, 1922, and
baptized in the same church on June 10, 1923, and that a male
child was born on December 30, 1924; . . .

4. This contract will subsist as long as both parties comply

faithfully with all of its terms; but nothing that has been stipulated
signifies renunciation of any rights which each of the parties named
have under the law.

The accused continued their illicit relations, and on February 24,

1927, still another child was born, whereupon the present action
was brought on August 26, 1927.1awphi1.net

Upon trial the court below found the defendants guilty as charged
in the complaint and sentenced Agapito Francisco to one year, eight
months and twenty-one days of prision correccional with the
accessory penalties and, likewise, sentenced Josefina Mantelo to
suffer two years, four months and one day of banishment. From
this sentence the defendants appealed.

The crime alleged to have been committed is concubinage as

defined by article 437 of the Penal Code. That article is included in
the same chapter as the articles on adultery, prior to the enactment
of Act No. 1773, both crimes were regarded as of a private nature
and might be extinguished at any time upon condonation by the
offended party. That act converted adultery and several other
private crimes into public crimes, but the crime of concubinage was
apparently overlooked, and in the case of United States vs. Rivera
and Vitug (28 Phil., 13), this court held that concubinage might still
be extinguished by condonation.

At the trial of the present case the defendants endeavor to prove

that the offended party had condoned the crime committed by the
husband, but the trial judge, being under the impression that
concubinage, in common with adultery, is now a public crime,
refused to receive evidence of condonation. In this his Honor erred,
if we are to follow the decision in the Rivera case, and the case
must, consequently, be remanded for further evidence. The majority
of the members of the court are of the opinion.

It is therefore hereby ordered that the case be remanded to the

court below for reception of evidence upon the point as to whether
or not the offended party had condoned the crime of which the
defendants-appellants are accused. No costs will be allowed in this
instance. So ordered.

EN BANC

[G.R. No. 9540. September 10, 1914. ]

THE UNITED STATES, Plaintiff-Appellee, v. JUAN RIVERA and

RAFAELA VITUG, Defendants-Appellants.

Ledesma, Lim & Irrureta Goyena, for Appellants.

Solicitor-General Corpus, for Appellee.

SYLLABUS

1. CONCUBINAGE; NATURE OF CRIME. — The crime of

concubinage, provided for and punished in article 437 of the
Penal Code, is of almost a public nature, although for its
prosecution the cause must be instituted by virtue of a
complaint of the offended spouse, in accordance with the last
paragraph of the article cited in connection with the preceding
article 434 of the same code; as it is not a crime of a private
nature, it is not enumerated in Act No. 1773.

2. ID.; CONSENT OF THE OFFENDED SPOUSE; LOSS OF RIGHT

OF ACTION. — When the offended spouse gives her consent to
the commission of the crime of concubinage on the part of her
husband, who separated from her and went to live with another
woman, without having appealed to the authorities to
denounce the act during the long period of over ten years, in
spite of the fact that she knew and was informed of the illegal
union and the marital life her husband was leading with
another woman, it i evident that at the end of so long a period
she has no legal consented to her husband’s conduct, action
against him and his concubine under the provisions of
paragraph two of article 434 of ther Penal Code, applicable in
the case of concubinage, according to the last paragraph of
article 437 of the same Code.

DECISION
TORRES, J. :

This case was brought up on appeal filed by counsel for the

defendants from the judgment dated October 27, 1913 whereby the
Honorable Julio Llorente, judge, found them guilty of concubinage
with scandal and sentenced Juan Rivera to the penalty of one year
eight months and twenty-one days of prision correccional and
Rafaela Vitug to two years four months and one day of destierro,
forbidding her to come within a radius of twenty-five kilometers of
the municipality Lubao, Pampanga. Both were sentenced to the
accessories of the law, with allowance of credit for half the time of
their detention, and to payment of the costs in equal parts

It was fully shown at the trial that the defendant Juan Rivera legally
married Anselma Garcia on June 3, 1893, in the town of Lubao,
Pampanga, and during the first years of their marriage they had
various children, of whom only Gregorio Rivera has survived; that
said spouses continued to live together until 1902 when Rivera
separated from his wife and went to live in marital relations with
Rafaela Vitug, who was likewise separated from her husband Carlos
Punsalan; that since the said year 1902 the defendant Rivera and
Vitug have been living together as man and wife in different places
and especially in the town of Lubao, Pampanga; that since that time
they have been seen to go about always together in public, in the
church, and even in the streets of this city of Manila, for on one
occasion when the injured wife met them in one of the streets of
Manila, Juan Rivera told her that he was seeking pretexts for
separating from his concubine; that both in the houses the
defendant Rivera had in the barrio of Pulita of the town of
Floridablanca and in the barrio of San Vicente of Lubao, as well as
in the house of the parents of the defendant Vitug in the barrio of
San Francisco and in that of the grandfather of the defendant
Rivera himself in the barrio of San Nicolas of the said town of
Lubao, they were seen to retire together and to pass the nights lying
in each other’s embrace in the same bed.

The facts set forth really constitute the crime of concubinage with
scandal, provided for and punished in article 437 of the Penal Code,
for the defendant Juan Rivera, lawful husband of the complainant
Anselma Garcia, separated from her and has been living from 1902
up to the date of the complaint, January 24, 1913, with Rafaela
Vitug, also married, and they have been going about the streets of
the town wherein they resided and performing overt acts of
concubinage in sight of everybody, without any reserve or
consideration of the offense to law and morality, their conduct
producing a bad example among their neighbors and other
acquaintances; wherefore it is beyond doubt that they have violated
the penal law.

The defendants pleaded not guilty, and Rafaela Vitug, the only one
who testified in the case, denied that she had lived in marital
relations with her codefendant Juan Rivera.

Notwithstanding the facts stated, it appears from the trial that since
1902, when Juan Rivera ceased to live with his wife Anselma
Garcia, until 1912, when the latter filed a complaint that her
husband was living in concubinage with another woman, with
whom he has been living within and without the conjugal home for
a period of more than ten years, the complainant has remained
silent in spite of the fact that she frequently saw her husband in
company with his concubine in the same town in which she lived.

On June 13, 1912, the offended woman filed a complaint in the

justice of the peace court of Lubao, charging her husband Juan
Rivera and Rafaela Vitug with adultery, because they had entered
into marital relations with great scandal (p. 47); but by another
document dated the 17th of the same month and year, the
complainant Anselma Garcia set forth that in filing the foregoing
complaint she had confided in the disinterested advice of certain
persons, but as she could not rely upon the evidence to sustain it
and having no interest in prosecuting it further, she desisted and
withdrew it and asked for final dismissal of the case, which was
ordered by the justice of the peace (p. 53). The next day, June 18,
the separated spouses executed in the presence of two witnesses
the document at page 44, ratified before a notary public, wherein
they both appear to have declared among other things that because
of incompatibility of habits and because they were unable to live
together as husband and wife, by common agreement they had
been separated since the year 1902, after which date it had been
agreed that their only child Gregorio Rivera should continue to live
with and be under the care of its mother Anselma Garcia, but that
at any time their said child should desire and wish to live with its
father for the sake of its education, its mother would not oppose
this; and moreover they solemnly declared that each one renounced
any claim for damages against the other, in case they might have
such either at that time or in the future accruing to either by
reason of their marriage, and therefore they renounced any right
that they might have in their favor from that time thenceforward.

Nevertheless, under date of January 24, 1913, the injured woman

again filed her complaint, charging her husband Rivera and his
concubine Rafaela Vitug with the crime of concubinage with public
scandal.

Article 437 of the Penal Code says:jgc:chanrobles.com.ph

"The husband who shall keep a concubine in his home, or out of it
with scandal, shall be punished with the penalty of prision
correccional in its minimum and medium degrees.

"The concubine shall be punished with banishment.

"The provisions of articles 434 and 435 are applicable to the case
referred to in this article."cralaw virtua1aw library

Article 434 of the same code says:jgc:chanrobles.com.ph

"No penalty shall be imposed for the crime of adultery except upon
the complaint of the aggrieved spouse.

"The aggrieved spouse can only file such a complaint against both
offenders, if both are living, and not at all if he or she has consented
to the adultery or pardoned either of them."cralaw virtua1aw library

If the provisions of the second paragraph of this article 434 are

applicable to the case of a husband accused of concubinage with
scandal, according to the provisions of the last paragraph of the
above-quoted article 437 of the code, then when it has once been
shown in this case that the complainant Anselma Garcia gave her
consent to the concubinage of her husband with Rafaela Vitug,
without having appealed to the authorities to denounce the act for
more than ten years after they began to live together in the same
town in which she resided, it is evident that she can institute no
criminal action against her husband and his concubine, by reason
of her consent, as prescribed in the above-quoted article 434 of the
Penal Code.
The long period of time of over ten years that elapsed during which
her husband Juan Rivera was separated from her after 1902 and
living in marital relations with Rafaela Vitug, without its having
occurred to her to denounce such unlawful conduct, although they
all lived in the town of Lubao, where the immoral life her husband
was leading with the defendant Vitug was public and notorious, is
proof of her consent thereto, and if only in June, 1912, it occurred
to her to accuse him of adultery, although a few days later she
desisted from her complaint and on the next day by common accord
they executed the agreement of separation set forth in the
document at page 44, ratified before a notary, the injured party has
by such conduct demonstrated in an indubitable manner that if
before 1912 she had given her consent to the illegal conduct of her
husband, later she ratified it in a document setting forth that she
withdrew the complaint she had presented and in the agreement of
separation of which mention has been made.

It has been alleged by the defense that the injured woman filed the
complaint against her husband in 1912 by inducement of persons
opposed to him in the election for the office of municipal president
of Lubao, for which her husband Rivera was a candidate; and that
the later complaint filed in January of 1913 by like inducement was
due to the fact that he had been elected president.

The theory to be deduced from these allegations is not impossible or

unlikely, because the silence Anselma Garcia kept during ten years
and her later attitude from the time when her erring husband might
become president of the town of Lubao, as did happen, remain
unexplained; but even putting aside such a theory and regarding it
as a coincidence, it appears in the case that the injured woman
Anselma Garcia consented to the concubinage of her husband from
1902 up to the date of her last complaint in January, 1913; and
therefore, under the provisions of article 434 of the Penal Code, her
complaint of concubinage with scandal must be dismissed by
reason of her consent, indicated by her silence for over ten years.

It is to be noted that said crime is of almost a public nature,

although for the prosecution and punishment thereof the cause
must be instituted by virtue of a complaint of the injured spouse, in
accordance with the last paragraph of article 437 of the Penal Code;
and as it is not a crime of a private nature, it is not enumerated in
Act No. 1773.

For the foregoing reasons, the judgment appealed from should be

reversed and the case dismissed along with the complaint that
instituted it, with the costs in both instances de oficio. So ordered.

Arellano, C.J., Johnson and Araullo, JJ., concur.

Carson, J., concurs in the result.

EN BANC

G.R. No. 6608 September 5, 1911

THE UNITED STATES, plaintiff-appellee,

vs.
JUAN CASIPONG and GREGORIA HONGOY, defendants-
appellants.

Lucas Gonzales, for appellants.

Acting Attorney-General Harvey, for appellee.

TORRES, J.:

This is an appeal by the defendants from the judgment rendered in

this case by the Hon. Adolph Wislizenus. Juan Casipong later
withdrew his appeal, so the judgment is final in his case (p. 16 of
the record), while the appeal continues with respect to Gregoria
Hongoy.

On March 5, 1909, Juan Casipong contracted civil marriage with

Teodora Juanico before the justice of the peace of the pueblo of
Dumanjug, witnesses thereto being Telesforo Quirante and Macario
Pasculado, as shown in the certificate issued by the acting
municipal secretary of that municipality; but two weeks after the
ceremony Casipong left his wife and removed to the barrio of
Bolocboc to live with Gregoria Hongoy, whereupon the offended wife
went to live at her mother's. For the purpose of assuring herself
that her husband was really living with another woman, according
to rumors she had heard, the offended wife went in company with
one Hilaria Lumban to said barrio, where she actually saw her
husband, Casipong, maintaining marital relations with the
aforesaid Gregoria Hongoy, and although she did not see them in
carnal intercourse, still she saw the two lying side by side and or
several occasions going together to different places in that barrio,
and that there was no one besides them in the house where they
lived.

Accordingly, the provincial fiscal on August 24, 1910, filed a

complaint in the Court of First Instance of Cebu, charging Juan
Casipong and Gregoria Hongoy with the crime of concubinage, and
instituted this cause, wherein the judge rendered decision the same
day, sentencing the defendant Casipong to one year eight months
and twenty-one days of prision correccional, and the defendant
Gregoria Hongoy to two years of banishment, prohibiting her during
the period of the sentence from going within a radius of 25
kilometers of the place where the crime was committed, the barrio
of Bituon, pueblo of Dumanjug; with half the costs against each
party. From this judgment the defendants appealed, but later
Casipong withdrew his appeal, as has been stated.

The crime in this case is provided for and penalized by article 437 of
the Penal Code, as follows:

The husband who shall keep a concubine in his home, or out of it

with scandal, shall be punished with the penalty of prision
correccional in its minimum and medium degrees.

The concubine shall be punished with banishment.

From the text of this article it appears that it is an indispensable

condition for convicting the husband of concubinage outside of his
home that his conduct produce scandal and set a bad example
among his neighbors, and, according to a principle laid down by the
supreme court of Spain in applying this article of the Penal Code in
that country to a case analogous to the foregoing, in a judgment of
June 16, 1888, publicity of an immoral act produces scandal, for by
the bad example set it gives offense and wounds the virtuous
sentiments of others. This principle was reiterated in another
judgment of February 25, 1896.

The unlawful union of a married man with a woman not his wife,
when the two live within a town and in the same house as lawful
husband and wife, go together through the streets of the town,
frequent places where large crowds gather, and commit acts in
plain sight of the community without caution and with effrontery, is
a procedure that gives rises to criticism and general protest among
the neighbors and by its bad example offends the conscience and
feelings of every moral person; and when these conditions attend
the conduct of a married persons it is indubitable that his
concubinage with another woman, even though she does not live in
his home, carries with it the circumstance of scandal required by
the law to make his action criminal.

It is to be noted in considering such complex actions that in order

to regard them as criminal it is necessary and indispensable that
they be performed by a married man and a woman, or by both, the
man being the active and the woman the passive agent, each with
separate responsibility. There fore, notwithstanding the man's
withdrawal of his appeal and the fact that the appeal taken by
Gregoria Hongoy will alone be the subject of the decision, yet the
arguments bearing upon the perpetration of the crime and proof of
it will necessarily affect the man who is the alleged active agent
thereof.

On this hypothesis and as a result of the hearing in this case, it is

impossible to affirm that Juan Casipong, husband of Teodora
Juanico, has been living in concubinage with public scandal with
another woman, Gregoria Hongoy, because of lack of conclusive
proof demonstrating the reality of the crime with the conditions the
law requires for punishing the perpetrator thereof and his
concubine.

Nothing would be easier than to adduce proofs of the criminal act, if

said Casipong really forsook his wife and unlawfully entered into
relations with Gregoria Hongoy, for if they have lived publicly in
concubinage and in sight of everybody, various witnesses, residents
not only of the place of residence of the offended wife and her
husband but also of the barrio of Bolocboc, to which the unfaithful
husband removed in order to live with his paramour, could have
testified. The statement of the offended wife and of the witness
Hilaria Lumban, who only once saw them together, is not sufficient
to prove the aggregate of acts performed by the two accused, with
the scandal produced by the bad example set in their neighborhood.

Under the prevailing criminal procedure, the fiscals's sphere of

action is quite extensive, for he has very direct and active
intervention in the trial, assuming as the Government's
representative the defense of society, which has been disturbed by
the crime, and taking public action as though he were the injured
party, for the purpose of securing the offender's punishment,
whenever the crime has been proved and the guilt of the accused as
the undoubted perpetrator thereof established.

Perfunctory routine action is not sufficient performance of this

duty, but a searching and intelligent prosecution is necessary.
There should be an effort to submit at the trial the best and
strongest evidence available, wherefrom must necessarily appear
either the guilt or the complete innocence of the accused.

In this case it would have been easy to have submitted abundant

evidence that Juan Casipong forsook his lawful wife and lived in
concubinage in the village of Bolocboc with his paramour Gregoria
Hongoy, for there would have been more than sufficient witnesses
to testify to the actions performed by the defendants, actions not of
isolated occurrence but carried on for many days in sight of
numerous result of the trial it is impossible to conclude that the
concubinage with scandal charged against the defendants has been
proved, and therefore conviction of the alleged concubine Gregoria
Hongoy is not according to law.
For these reasons and from lack of proof of the facts alleged in this
case, it is our opinion that the judgment appealed from should
reversed and Gregoria Hongoy, acquitted, as we hereby do, with half
of the cots in each instance de oficio. As the defendant Juan
Casipong, through withdrawal of his appeal, is now serving
sentence for a crime which is held in this decision to be not proven,
this case should be respectfully brought to the attention of the
Honorable, the Governor-General, so that, if he deem it just and
expedient, he may pardon the said Casipong. So ordered.