[ G.R. No. 46310. October 31, 1939 ] 69 Phil. 66
[ G.R. No. 46310. October 31, 1939 ]
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. MARCIANO GONZALES, DEFENDANT AND APPELLANT. D E C I S I O N
CONCEPCION, J.:
Marciano Gonzales appealed from the judgment of the Court of First Instance of Tayabas which found him guilty of parricide and sentenced him to reclusion perpetua with the accessories of the law, to indemnify the heirs of the deceased, Sixta Quilason, in the amount of P1,000, and to pay the costs.
At the trial, the appellant testified that at midday on June 2, 1938, on returning to his house from the woods, he surprised his wife, Sixta Quilason, and Isabelo Evangelio in the act of adultery, the latter having escaped by jumping through the door of the house. He scolded his wife for such act, told her that the man was the very one who used to ask rice and food from them, and counseled her not to repeat the same faithlessness. His wife, promised him not to do the act again. Thereafter—the accused continued testifying—he left the house and went towards the South to see his carabaos. Upon returning to his house at about five o’clock in the afternoon, and not finding his wife there, he looked for her and found her with Isabelo near the toilet of his house in a place covered with underbush. When he saw them, his wife was rising up, while Isabelo, who was standing and buttoning his drawers, immediately took to his heels. The accused went after him, but unable to overtake him, he returned to where his wife was and, completely obfuscated, attached her with a knife without intending to kill her. Thereafter, he took pity on her and took her dead body to his house.
The appellant contends that, having surprised his wife in the afternoon of the date in question, under circumstances indicative that she had carnal intercourse with Isabelo, he was entitled to the privilege afforded by article 247 of the Revised Penal Code providing: “Any legally married person who, having surprised his spouse in the act of committing sexual intercourse with another person, shall kill either of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro. (Italics ours.)
We do not believe that the accused can avail himself of the aforesaid article, because the privilege there granted is conditioned on the requirement that the spouse surprise the husband or the wife in the act of committing sexual intercourse with another person; the accused did not surprise his wife in the very act of carnal intercourse, but after the act, if any such there was, because from the fact that she was rising up and the man was buttoning his drawers, it does not necessarily follow that a man and a woman had committed the carnal act.
We cannot, therefore, entirely accept the defense sought to be established by the accused, first, because his testimony is improbable. It is not conceivable that the accused had only mildly counseled his wife not to repeat committing adultery with Isabelo, instead of taking harsher measures as is natural in such circumstances, if it were true that he had surprised the two offenders in the act of adultery on returning to his house at midday on the date in question. Neither is it likely that a woman thirty years of age, like Sixta Quilason, and twenty-five-year-old Isabelo Evangelio, both of sound judgment as is to be supposed, had dared to have carnal intercourse near the toilet of the offended party’s house, a place which is naturally frequented by some persons. The circumstance that the place was covered by weeds, does not authorize the conclusion that the offenders could lay concealed under the weeds because the latter do not usually grow to such height as to conceal or cover two persons committing the guilty act. It seems that under the circumstances it is unnatural that they would execute the act in a place uncovered and open. We do not want to suppose that the sexual passion of two persons would border on madness. Secondly, because even assuming that the accused caught his wife rising up and Isabelo already standing and buttoning his drawers, the accused cannot invoke the privilege of article 247 of the Revised Penal Code, because he did not surprise the supposed offenders in the very act of committing adultery, but thereafter, if the respective positions of the woman and the man were sufficient to warrant the conclusion that they had committed the carnal act. (3 Viada, Penal Code, p. 96; People vs. Marquez, 53 Phil, 260).
Taking into account the mitigating circumstances of lack of intention on the part of the accused to commit so grave a wrong as that committed upon the person of the deceased, and of his lack of instruction, the appealed judgment is modified, and the accused is sentenced to the penalty of twelve years and one day to twenty years of reclusion temporal and to indemnify the heirs of the deceased in the amount of P1,000, with the costs. So ordered.
Villa-Real and Diaz, JJ., concur. Avanceña and Moran, JJ., see concurring opinion. Imperial and Laurel, JJ., see dissenting opinion.