[ G.R. No. 11895. December 20, 1916 ] 35 Phil. 901
[ G.R. No. 11895. December 20, 1916 ]
THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. TEODORA TOPIÑO AND GABRIEL GUZMAN, DEFENDANTS. GABRIEL GUZMAN, APPELLANT. D E C I S I O N
TRENT, J.:
Teodora Topiño and Gabriel Guzman were charged with the crime of adultery. The former was acquitted and the latter found guilty and sentenced to three years, six months, and twenty-one days of prision coreccional, to the accessory penalties provided by law, and to the payment of one-half of the costs of the cause. Gabriel Guzman appealed.
It is urged that the trial court erred (1) in holding that it had jurisdiction to try this case; (2) in admitting Exhibit C presented by the prosecution; (3) in finding that Exhibit C was conclusive proof of the guilt of Gabriel Guzman; and (4) in not acquitting the appellant.
The trial court found that the complaint presented by the offended husband against Teodora Topino and Gabriel Guzman, charging them with the crime of adultery formed a part of the record of the case. In the preparation of the record to be sent to this court that complaint was omitted, but it has since been sent up by order of this court. So it is quite clear that the first alleged error is without foundation.
The prosecution offered in evidence Exhibits B and C, which read as follows:
“I, Teodora Topino, wife of Pedro Mateo, 23 years of age, a resident of the Hacienda de San Antonio, Isabela, after being duly sworn, freely and voluntarily declare that the following facts are true:
“That about six years ago in cabeceria No. 22 of the Hacienda de San Antonio, I lagan, I left my husband Pedro Mateo’s control in order to join my elder relatives who also then lived in the said cabeceria; that about five years ago Gabriel Guzman invited me to live in his house on the same hacienda where, owing to a woman’s weakness and the fact of his being a single man, we lived together conjugally, and so he possessed me, enjoying my favors. As the fruit of our amorous relations two children were born, Josefina and Homobono.
“In testimony whereof I hereunto affix a cross beside by name, in the presence of two witnesses, this 4th day of September, 1915. (Cross) Teodora Topino.—Cross affixed in the presence of: (Sgd.) A. Medel.—Teo. M. Cumagun.—Subscribed and sworn to before me this 4th day of September, 1915.—(Sgd.) Francisco Taccad, clerk of the Court of First Instance, Isabela.
“I, Gabriel Guzman, of age, single, and a resident of the Hacienda de San Antonio, Ilagan, after being duly sworn, freely and voluntarily declare as follows:
“That in or about the year 1912 I became acquainted with Teodora Topiño, by reason of her having offered to wash my clothes; that sometime afterwards, being ignorant of her situation, I succeeded in obtaining her favors and as the result of our carnal relations, she began to show signs of pregnancy; that in view of those symptoms Mr. Orros, the manager of the hacienda on which I was living, warned me that that woman with whom I sustained these relations was married, but was only separated from her husband on account of certain differences and questions with him; that notwithstanding his warning and in view of the fact that my paternity of the foetus which she was already carrying in her belly was incontrovertible, and swayed by the sentiment natural to and innate in every father, I nevertheless continued my carnal relations with her, waiting for her husband who might consider himself aggrieved to appear; that up to the present time I have had two children by the said woman Teodora Topino. I also here record that if I consented to live with her in marital relations, it was owing to what she told me, to wit, that the then justice of the peace said that if she did not wish to join her husband she was not obliged to do so, and from that moment she was free. In my ignorance and believing that she was again single and free, I did not think it dangerous to sustain those relations with her.
“In witness of all the foregoing, I sign the present affidavit, in Ilagan, this 22d day of September, 1915—(Sgd.) G. Guzman.—Subscribed and sworn to before me, this 22d day of September, 1915.—The affiant exhibited to me his cedula F-233292, issued in Ilagan, Isabela, March 15, 1915.— (Sgd.) Ramon Crisologo, provincial fiscal, Isabela.”
Francisco Taccad, clerk of the Court of First Instance of the Province of Isabela, testified that Exhibit 6 was sworn to and signed by Teodora Topino before him on the 4th day of September, 1915; that Teodora signed the document by a cross because she did not know how to write; and that before she signed Exhibit B in this manner it was read to her in her own dialect by the provincial fiscal.
Teodorico M. Gumagun testified that the appellant himself prepared the rough draft of Exhibit C; that he (the witness) then copied the rough draft on the typewriter; that after the document had been copied the appellant read and signed it; that he saw the appellant sign the document; that in the preparation and signing of it there were no threats, intimidation or force used whatever; and that the appellant voluntarily and of his own volition prepared and later signed Exhibit C after it had been copied from the rough draft on the typewriter.
Pedro Mateo, the offended husband, testified that he and Teodora Topino were legally married about ten years ago; (Exhibit A, the certificate of marriage, was presented in evidence without objection) that he filed the complaint against his wife because she had committed adultery with Gabriel Guzman; that he and his wife separated about seven years ago; that in less than one year thereafter she commenced living in adultery with Guzman; that he (the witness) had no children by Teodora; and that the two accused had been living together less than six years on the Hacienda of San Antonio.
Remigio Barcena testified that he knew Teodora Topino because they worked on the same hacienda; that he knew that she was married to Pedro Mateo, with whom she lived for about three years; that after she left her husband she went first to live with her father and then with Gabriel Guzman; that she had been living with Guzman for about six or seven years on the Hacienda of San Antonio; that he knew that Teodora and Guzman were living together because the house in which they live is on the side of the road which leads to the barrio of San Antonio; that every time he goes to town he sees them; and that Teodora and Guzman are living as man and wife because they have two or three children.
Vicente Constantino testified that he knew Teodora Topino; that she was married to Pedro Mateo; that they lived together about three years; that after they separated Teodora went to look for another place to live; that Teodora had been living with Gabriel Guzman in the latter’s house for more than six years; that they had been living during this time as man and wife because Teodora has children; that he knows this to be a fact because every time he goes to the Hacienda of San Antonio or returns from that place he sees the two accused; and that it is true that he has never seen the two accused have illicit relations, neither has he seen Teodora give birth to a child, but he knows that Teodora has three children because the neighbors say so.
The foregoing is all of the testimony presented by the prosecution. The defense offered no witnesses, counsel saying, “The defense presents no proof and asks the dismissal of the case because there has been presented no complaint of the offended party.”
The trial court, in finding the defendant Guzman guilty of the crime charged, said:
“By this confession, freely and voluntarily made by this defendant (a person of sufficient education), not challenged during the trial, the rough draft of which was prepared by himself, being corroborated by other evidence (such as that of his having lived with his codefendant, Teodora Topino, for six years and that of her being a married woman as shown by the certificate Exhibit A of the prosecution the authenticity of which was admitted by the defense and accepted in evidence without objection) the court is convinced beyond all reasonable doubt that the said defendant did lie with a married woman, knowing her to be such.”
Teodora Topino was, as we have indicated, acquitted. The findings of fact with reference to this accused are as follows:
“The other defendant, Teodora Topino, also swore before the clerk of the court to the contents of an affidavit (the prosecution’s Exhibit B), the translation of which into Spanish is as follows (Exhibit B, supra):
“But the prosecuting attorney has not proved this confession to be free and voluntary, wherefore it cannot be considered in this case. (U. S. vs. De Leon and De Leon 27 Phil. Rep., 506.) This confession being stricken out, there only remains against this defendant the circumstantial evidence of her having lived with Gabriel Guzman for six years, which is insufficient to sustain a conviction for adultery. The witnesses for the prosecution testified, indeed, that she lived conjugally with the said Guzman, and that, as a consequence thereof, she had two children; but on these witnesses being asked how they knew, they said that it was by deduction or by hearsay.”
When Exhibits B and C were formally offered in evidence by the fiscal, counsel for the defendant objected, saying:
“I object to the admission of the document Exhibit B, because it has not been proven that the defendant made the said declaration voluntarily, because it is drawn up in the Ilocano dialect, and, furthermore, because it has not been ratified by the person who made or signed it.
“With regard to Exhibit C, the same objection is offered, to wit, that it has not been ratified by the affiant. * * *
“By the court: Exhibits B and C are admitted, on condition that they be accompanied by a translation of Exhibit B.”
The second and third assignments of error relate to the admissibility and probative force of Exhibit C. The sole objection made in this court to the competency of Exhibit G is that it was subscribed and sworn to before the provincial fiscal, an officer not authorized to administer oaths under section 349 of the Code of Civil Procedure. This section reads:
“An affidavit to be used before any court, judge, or officer of the Philippine Islands may be taken before any judge or clerk of any court, or any justice of the peace, or any notary public in the Islands.”
Section 2012 of the Code of Civil Procedure of California, enacted March 11, 1872, in the exact language of the Practice Act, section 424, is as follows:
“An affidavit to be used before any court, judge, or officer of this State may be taken before any judge or clerk of any court, or any justice of the peace, or notary public in this state.”
This section of the California Code was subsequently amended to read:
“An affidavit to be used before any court, judge, or officer of this State may be taken before any officer authorized to administer oaths.”
The section, as thus amended, was declared unconstitutional. (Lewis vs. Dunne, 134 Cal., 291.)
The Supreme Court of California in Haile vs. Smith (128 Cal., 415), in construing section 2012 of 1872, held that the section did not exclude all officers, except those herein mentioned, from taking affidavits to be used before courts and that affidavits taken before any officer of the state authorized to administer oaths may be thus used. Consequently, section 349, supra, of our Code is not exclusive. Affidavits taken before officers other than those mentioned in the section, if such officers are authorized to administer oaths, may be used in the courts in this country.
Section 2 of Act No. 302 provides that “For the purposes named in this section each provincial fiscal is hereby authorized to administer oaths.” The section refers to preliminary investigations. Section 2 of Act No. 302 was repealed by Act No. 2657, known as the Administrative Code, and the reenactment (section 1306) wholly omitted that part of section 2 above quoted. But the affidavit had been sworn to long before the passage of the Administrative Code. Therefore, the repeal of the provisions authorizing provincial fiscals to administer oaths did not destroy or render inadmissible Exhibit C upon this ground. But if the repeal of the statute did render the affidavit as such inadmissible, it would still be competent evidence as a voluntary confession. The result is that there cannot be the slightest doubt about the correctness of the trial court’s findings of fact to the effect that the appellant had carnal intercourse with Teodora Topino after he knew that she was a married woman. The appellant himself made the rough draft of the affidavit wherein this fact is fully set forth and the record shows, as we have indicated, that the same was made voluntarily, without the use of coercion, threats, promises or intimidation. Furthermore, the contents of Exhibit C are corroborated by the testimony of the above named witnesses.
Counsel in his argument in support of the fourth alleged error insists that the acquittal of Teodora Topino must necessarily result in the acquittal of her codefendant, the appellant. We think that the premises upon which this proposition rest are not well founded in law.
Articles 433, 434, and 435 of the Penal Code read:
“ART. 433. The penalty for adultery shall be prision correccional in its medium and maximum degrees.
“Adultery is committed by any married woman who shall lie with a man who is not her husband and by a man who has carnal knowledge of her, knowing her to be married, even if the marriage be subsequently declared void.
“Art. 434. No penalty shall be imposed for the crime of adultery, except upon a complaint filed by the injured husband.
“The husband cannot institute a prosecution without including therein both the guilty parties, if they are both alive, nor in any case, if he shall have consented to the adultery or pardoned either of the adulterers.
“ART. 435. The husband may at any time remit the penalty imposed upon his wife.
“In such case the penalty imposed upon the wife’s paramour shall also be deemed to be remitted.”
Adultery is now, and has been since the passage of Act No. 1773 on October 11, 1907, a public crime and must be prosecuted in the same manner as are all other crimes defined by the Penal Code or by the Acts of the Philippine Commission, but no prosecution for the crime of adultery can be instituted except upon the complaint of the aggrieved party, and condonation, pardon, or remission of the penalty for adultery by the aggrieved person can in no way extinguish the liability of the guilty persons or operate to dismiss or suspend any prosecution once commenced in accordance with the provisions of Act No. 1773. To this extent the above provisions of the Penal Code have been repealed.
If a man lies with a married woman, knowing her to be married, he commits the crime of adultery. If a married woman lies with a man who is not her husband, she likewise commits the crime of adultery. In order to constitute adultery in either instance, there must be a joint physical act Both bodies—that of the man and the woman—must concur in the act. Must there also be in every case a joint criminal intent? We think not. While the criminal intent may exist in the mind of one of the parties to the physical act, there may be no such intent in the mind of the other party. One may be guilty of the criminal intent, the other innocent, and yet the joint physical act necessary to constitute adultery may be complete. Thus, if one of the parties was, at the time of committing the physical act, insane, certainly such party has committed no crime; but it certainly cannot be contended that the other party who was sane, committed no crime. So, if the man had no knowledge that the woman was married, he would be innocent, in so far as the crime of adultery is concerned, and the woman guilty. The one would have to be acquitted and the other found guilty, although they were tried together. Or in other words, the act of sexual intercourse with a married or an unmarried man, other than her husband, is adultery in the woman without regard to the guilt of the man.
It is quite true that the husband cannot institute a prosecution for the crime of adultery without including therein both of the guilty parties, if they are both living (article 434, supra), but the statute does not require that both must necessarily be tried together. The force of the article is spent when the husband institutes the prosecution against both or includes both in his complaint It is not for the husband to determine the question of the guilt or innocence of the paramour of the crime of adultery. That question must be left to the court. (U. S. vs. Asuncion, 22 Phil. Rep., 358.) When the complaint is tiled by the offended husband against both of the guilty parties, the proceedings then pass into the hands of the prosecuting officer, who may move for a dismissal of the complaint as to the paramour, if he is satisfied that he cannot establish guilty knowledge on the part of the man of the fact that the woman was married, and such dismissal would not of itself require the court to acquit the woman. Nor would the death of the woman during the pendency of the action defeat the trial and conviction of the man. (U. S. vs. De la Torre and Gregorio 25 Phil. Rep., 36.) Nor would the fact that the man had left the country and could not be apprehended defeat the trial and conviction of the woman. Again, if both were brought before the court to be tried jointly and one should claim a separate trial, which the court would have to grant (section 33, General Orders No. 58), the acquittal of the one would not necessarily bar a prosecution and conviction of the other. But it is said that in the instant case the woman was acquitted upon the ground that the proof as to her was not sufficient to establish beyond a reasonable doubt the fact that she had illicit intercourse with the man or that the joint physical act did, in fact, occur, and therefore the acquittal of the man must follow as a necessary consequence. If this be true, it would work a strange result if the male defendant, Gabriel Guzman, could openly admit, as he did, habitual illicit intercourse with Teodora Topino after he knew she was a married woman and then defy the law because there was no competent evidence against her. The mere fact that the trial judge was of the opinion that the evidence of record was insufficient to establish the guilt of Teodora beyond a reasonable doubt does not necessarily establish the fact, in so far as the other was concerned, that the two did not have illicit intercourse. The case at bar establishes this proposition beyond question.
In its decision of January 17, 1889, the supreme court of Spain had the following case under consideration: The offended husband presented a complaint against his wife, charging her with the crime of adultery as defined and penalized by article 449 of the Penal Code (article 433 of the Philippine Code), without including therein the paramour, because he was unknown. The trial court acquitted the defendant upon the ground that under the law relating to adultery one of the guilty parties alone could not be prosecuted and punished unless it be shown that the other was dead. On appeal this judgment was reversed, the court saying,
“In defining the said crime the Penal Code requires, in order that the man who lies with a married woman may incur the penal sanction provided therein, that he must know that she is married; this circumstance clearly shows that occasions may arise wherein a penalty may be imposed upon one of the guilty parties and not on the other.”
It was suggested during the consideration of this case that, as the appellant did not know that Teodora was married for sometime after the commencement of their illicit relations, the continuance of such relations after he was informed of that fact might not constitute adultery. In determining this question it must be borne in mind that this is not a case where the woman is a common prostitute. There is no evidence in the record of unfaithfulness on the part of Teodora except with the appellant. She has had no illicit relations with any other man since she left her husband. Prior to the date on which Act No. 1773 became effective, adultery was considered a private crime in the sense that the prosecution could only be instituted upon the complaint of the injured husband and that the husband could pardon the guilty parties and remit the penalty imposed upon his wife, which had the effect of also remitting the penalty imposed on the paramour. The husband being the head of the family and the only person who could Institute the prosecution and control its effects, it is quite clear that the principal object in penalizing the offense by the state was to protect the purity of the family and the honor of the husband, but now the conduct of the prosecution, after it is once commenced by the husband, and the enforcement of the penalties imposed is also a matter of public policy in which the Government is vitally interested to the extent of preserving the public peace and providing for the general welfare of the community. That the defendant’s conduct in continuing to live in adultery with Teodora, after he found out that she was married, endangered the public peace and the general welfare of the community there can be no doubt. Article 433, supra, makes no such exceptions as the one here presented, and we can make none. For the foregoing reasons the judgment appealed from is affirmed, with costs against the appellant. So ordered.
Torres, Johnson, Carson, and Araullo, JJ., concur. Moreland, J., see dissenting opinion.