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https://www.homeworkping.com/Republic of the PhilippinesSUPREME COURTManilaTHIRD DIVISIONG.R. No. 133382 March 9, 2000PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.EFREN MENDOZA y SALVADOR, accused-appellant. D E C I S I O NPANGANIBAN, J.:True, a father and husband has the duty and the right to defend himself, his family and his home. However, in order to successfully invoke self-defense and defense of relative, he must prove, by clear and convincing evidence, the concurrence of three elements, the most important of which is unlawful aggression on the part of the victim. Absent unlawful aggression, these defenses collapse and the accused must be convicted.The CaseEfren Mendoza y Salvador was charged with murder for the July 14, 1993 killing of Anchito A. Nano. Before the Regional Trial Court of Daet, Camarines Norte, an Information 1 was filed against him on September 9, 1993, alleging as follows:That on or about 7:30 o’ clock [o]n the evening of July 14, 1993, at Brgy. Manlucugan, [M]unicipality of Vinzons, [P]rovince of Camarines Norte, and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully, unlawfully and feloniously with deliberate intent to kill, with treachery and evident premeditation, assault, attack and hack with a bolo one ANCHITO A. NANO, thereby inflicting upon the latter multiple hacking wounds, which were the proximate cause of his instantaneous death, to the damage and prejudice of the heirs of the victim.CONTRARY TO LAW. 2

During his arraignment on October 22, 1993, appellant, with the assistance of Atty. Leo Intia, entered a plea of not guilty. 3 On November 6, 1997, after trial in due course, the court a quo rendered its assailed nine-page Decision, 4 the dispositive portion of which reads:WHEREFORE, premises considered, this court hereby finds the accused, Efren Mendoza GUILTY beyond reasonable doubt of the crime of MURDER defined and penalized under Article 248 of the Revised Penal Code. The mitigating circumstance of voluntary surrender will not affect the penalty imposed since it is offset by the aggravating circumstance of treachery. Wherefore, he is hereby ordered to suffer the penalty of RECLUSION PERPETUA, and to pay the heirs of the deceased the following:a) P50,000.00 as death indemnity; andb) P30,000.00 as moral damages.The bond posted for the provisional liberty of said accused is hereby CANCELLED.SO ORDERED. 5

Hence, this appeal. 6

The FactsThe Version of the ProsecutionIn the People’s Brief, 7 the Office of the Solicitor General presented the following statement of facts:At around 7:00 p.m. of July 14, 1993, in Barangay Manlucugan, Vinzons, Camarines Norte, Anchito Nano and Marianito Rafael passed by appellant’s house and asked for a drink from appellant’s wife, Emily Mendoza. Anchito began talking with Emily and they were about four arms-length from Marianito when appellant suddenly appeared. Appellant hacked Anchito on the nape, which prompted Marianito to flee out of fear for his life. (TSN, March 9, 1993, pp. 10-14).Brgy. Kagawad Pedro Saman, together with Ernesto Cribe and Trinidad delos Santos, arrived later at the scene of the crime. Kagawad Saman discovered Anchito in a kneeling position already dead. He also found (3) three hack wounds on the nape and two (2) hack wounds at the back of Anchito’s body (TSN, March 10, 1997, pp. 7 and 18).

At around 9:00 p.m. of that day, Trinidad delos Santos reported the hacking incident to the sub-station of Aguit-it, Vinzons. SPO2 Silverio Rafael proceeded to the crime scene and saw Anchito’s body still in a kneeling position with hackwounds at the back of the neck and body (TSN, May 31,1994, p. 5).SPO4 Rafael asked the people present who was the perpetrator of the crime. The Barangay officials led by Kgwd. Saman and Kgwd. Cribe informed Rafael that the perpetrator was appellant Efren Mendoza. SPO4 Rafael later observed that the appellant’s house was in total disarray and he surmised that things might have been taken in a hurry. He also noted that there was no weapon anywhere near the victim’s body (Ibid., pp. 12-14 and 17).Later that night, appellant surrendered to Senior Police Officer Leonardo Almadrones who promptly turned him over to Chief Investigator Joel Guinto for the requisite investigation. During investigation, appellant claimed that Anchito ransacked his house and hacked his seven (7) year old son Ernie Mendoza (TSN, July 1, 1994, p. 5).Two days later, appellant’s wife and son went to the Vinzon’s police station to blotter Ernie Mendoza’s wound. Investigator Guinto interviewed Ernie Mendoza and concluded that Ernie’s wound was made by somebody other than the victim since the said wound was not deep enough. Also, when he questioned the child about the wound, the latter answered that when he woke up, he already had a wound. Investigator Guinto later filed the present charge against appellant after the victim’s common-law wife brought several witnesses who each executed their corresponding sworn affidavits. (ibid., pp. 7 & 11). 8

The Version of the DefenseThe defense presented six witnesses: Appellant Efren Mendoza, his wife Emily and his son Ernie; Bayani Aguilar; Dr. Gaudencio Albano and Carmen Herico. In his Brief, 9 appellant summarized the defense witnesses’ testimonies as follows:EMILY MENDOZA, wife, of appellant, testified that at around 7:00 o’ clock in the evening, the victim Anchito Nano and his companion Marianito Rafael arrived at their house and upon arrival, Anchito Nano destroyed the two (2) windows of their house. She saw afterwards that her son, Ernie Mendoza, was hacked by Anchito Nano while the former was peeping thru the destroyed window. She shouted for help and appellant, her husband, responded to her call and saw Anchito Nano who was about to attack her husband, but was hacked first by the latter. Marianito Rafael who was just watching subsequently fled from the place of the incident. She brought her son first to the faith healer for immediate treatment and the following morning to the Provincial Hospital for medical treatment. She learned later that her husband went to Vinzons Municipal Hall and surrendered voluntarily to the police authority on the same day of July 14, 1993. (TSN, December 8, 1994, no. 3-11).EFREN MENDOZA, accused-appellant, testified that on July 14, 1993, at around 7:30 in [the] evening, he was at the comfort room 20 about meters away from their house when he heard his wife shouting for help. He ran immediately towards the direction of their house and saw Anchito Nano destroying the lock of their window[;] hence he looked for a piece of wood but found a bolo instead. He later heard his son shout, “Ama, tinaga ako.” He approached Anchito Nano to prevent him from entering their house but the latter tried to hack him. He was able to deliver a hacking blow ahead of the victim on the right side of the neck. Thereafter, he immediately went to the Municipal Hall of Vinzons and surrendered voluntarily to the police authority (TSN, March 27, 1995, pp. 3-8).ERNIE  MENDOZA, appellant’s son, testified that on July 14, 1993, at around 7:30 in the evening, he noticed that somebody was hacking their house, hence, he peeped through the window and saw Anchito Nano who hacked him on the head, thereby resulting [in] los[s] of consciousness while his mother [kept] on shouting for help. He was brought first to a quack doctor for immediate treatment and the following morning, to the provincial hospital where he was treated by Dr. Albano for the head injury he sustained.BAYANI  AGUILAR, police chief of Vinzons PNP testified that he issued a certification on August 3, 1993 about the voluntary surrender of appellant Efren Mendoza and another certification regarding one in the report made by Emily Mendoza relative to the hacking of his son by Anchito Nano which happened on July 14, 1993 at about 7:30 in the evening at their house (TSN, November 7, 1995, pp. 2-4).DR. GAUDENCIO ALBANO, the attending doctor who treated appellant’s son testified that he treated Ernie Mendoza who suffered a wound laceration four (4) cm. long at the middle of the head which could have been caused by a blunt object. (TSN, July 31, 1996, pp. 4-6).CARMEN HERICO testified that on July 14, 1993, at around 7:30 in the evening, she heard her daughter, Emily Mendoza shouting for help, hence she ran towards her daughter’s house and they met halfway along the road. They proceeded back to her daughter’s house and she saw the fallen window. She and her daughter, subsequently proceeded to the house of Pedro Saman, a barangay kagawad and informed the latter about the incident. (TSN, October 22, 1996, pp. 3, 5-6). 10Trial Court RulingThe court a quo rejected appellant’s plea of self-defense, ratiocinating as follows:To bolster his claim of self-defense, accused Efren Mendoza declared: when he heard the shouts for help of his wife, immediately he ran towards their house and saw the victim destroying their house. There, he heard his son [shout], “Ama, tinaga ako.” He immediately approached the victim in order to prevent him from entering the house. He delivered the first blow by hacking the victim, hitting the victim at the right side of the neck, alleging that the victim, when they were facing each other, hacked the accused first.Indeed, a man’s house is his castle. He has the right to protect it. He may repel force by force in defense of person, habitation or property against anyone who manifestly intends or endeavors by violence or surprise to commit a felony. But these circumstances surrounding the incident negates the allegations of the accused’s self-defense.  First, there is an eyewitness on the part of the prosecution, that the accused suddenly attacked and hacked the victim outside the house

(tsn., March 9, 1994, pp. 12-13). Secondly, the physical evidence of the number, location and severity of the [hack] and incised wounds found on the body of the victim affirmed by the medical findings contained in the autopsy report that all the hack wounds [came] from the back of the victim’s body (tsn., Feb. 4, 1994, p. 7), and the pictures presented in court (Exhibits “C” to “C-40″) all indicate that the victim was hacked from behind. Clearly, accused’s act was no longer one of self-preservation, but a determined effort to kill his victim. 11Holding that appellant’s claim was debunked by the prosecution witnesses’ testimonies which were more credible, the trial court explained:Kagawad Pedro Saman was among the first persons who saw the vicinity of the incident. He noticed that the victim was not carrying any weapon or knife or a piece of wood and the house was in good condition (tsn, March 10, 1994, p. 14). It was corroborated by SPO4 Silverio Rafael that there was indeed no weapon within the vicinity where the corpse of the victim was found (tsn, May 31, 1994, p. 17) The allegations of the accused that the victim was the aggressor who hacked him first is contrary to human nature. There was no altercation, warning or even a challenge that [would] enable the victim to be aggressor. The aggression must be real, or at least, imminent and not merely imaginary. The aggressor’s intent must be ostensibly revealed by his hostile attitude and other external acts constituting a real, material, unlawful aggression. A threat, even if made with a weapon or the belief that a person was about to be attacked, is not sufficient. It is necessary that the intent be ostensibly revealed by an act of aggression or by some external acts showing the commencement of actual, material, unlawful aggression. This court finds that [since] the accused was not in imminent danger of death or great bodily harm, an attempt to defend himself by means which appeared unreasonable by using a long bolo is unjustifiable. Hence, the self-defense foisted by the accused is not well-founded, but an alibi to exonerate him from the offense he committed. 12The Alleged ErrorsIn his Brief, appellant assails (1) the trial court’s rejection of his plea of defense of relative and (2) its characterization of the crime committed. Thus, he submits:ITHE TRIAL COURT ERRED IN NOT UPHOLDING THE THEORY OF DEFENSE OF RELATIVE ESPOUSED BY THE ACCUSED-APPELLANT DESPITE CORROBORATIVE EVIDENCE SUPPORTING THE SAME.IITHE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME OF MURDER DESPITE THE ABSENCE OF QUALIFYING CIRCUMSTANCES OF TREACHERY AND EVIDENT PREMEDITATION AS ALLEGED IN THE INFORMATION. 13The Court’s RulingThe appeal is partly meritorious. The mitigating circumstance of voluntary surrender should be appreciated in appellant’s favor.First Issue:Self-Defense and Defense of a RelativeThe appellant admits to having hacked Anchito Nano, but vigorously insists that he did so to defend himself, his family and his home.Mendoza recounts that on that fateful night, he was relieving himself in their comfort room situated about twenty meters outside their house, when he heard his wife’s frantic pleas for help. He immediately rushed to their house and saw Nano destroying their windows. The former looked for something with which to arm himself and found a bolo. He recalls that at this point, he heard his son shout, “Ama, tinaga ako!” Thereafter, he approached Nano to prevent him from entering the house. The latter allegedly faced him and was about to strike him with a bolo, but the former was able to parry the blow, quickly retaliate and hit him on the neck. 14Requisites of Self-Defense andDefense of RelativeBecause the accused raises self-defense and defense of a relative, it is incumbent upon him to prove the presence of the following requisites: unlawful aggression on the part of the victim, lack of sufficient provocation on his part, and reasonable necessity of the means he used to repel the aggression. 15 It is settled that the accused who invokes self-defense or defense of a relative must present clear and convincing evidence. Such person cannot rely on the weakness of the prosecution, for even if it is weak, it cannot be disbelieved because the former has admitted the killing. 16Unlawful AggressionNot ProvenWe find that the appellant was not able to prove the all-important first requisite — unlawful aggression on the part of Anchito Nano. Mendoza contends that it was the latter who started the aggression by acting in a manner that was threatening and dangerous to the former and his family, wreaking havoc on his house and in the process, injuring his seven-year-old son. Appellant likewise avers that Nano was about to strike him when the former, acting instinctively, delivered the fatal blows to the latter.Emily and Ernie Mendoza, appellant’s wife and son, corroborated this assertion. They testified that the deceased had started the fracas and caused the wound on Ernie’s head. To further prove this claim, the defense presented Dr. Gaudencio Albano, Ernie’s attending physician, who testified that the boy had suffered a laceration, four centimeters long at the middle of the head, which could have been caused by a blunt object. 17Despite this corroboration, however, several circumstances belie appellant’s claim of self-defense and defense of a relative. First, investigators found the deceased in a kneeling position with five wounds — three on the nape, and two at the back. Thus, the nature and the location of such wounds debunked appellant’s claim that Nano was about to attack him.

Second, the bolo which Nano had allegedly used in his attack was not found within the vicinity of the crime scene and was not presented in court. This point was established by SPO4 Silverio Rafael’s testimony 18 and the photograph 19 depicting the actual crime scene.Third, granting that Ernie Mendoza was injured, the appellant and his witnesses were nor able to prove adequately that such injury was caused by Nano, because there were inconsistencies and improbabilities in their testimonies. Ernie claimed that he had lost consciousness after being struck with a bolo by Nano. 20 However, appellant asserts that he heard his child cry, “Ama, tinaga ako!” while the former was about to subdue the assailant. Moreover, appellant admits that he did not see Nano hit his son.Likewise, the testimonies of Carmen Herico (Emily’s mother) and Pedro Saman regarding the circumstances after the hacking incident negated Emily’s claim that she had rushed her wounded son to the faith healer. Herico went to her daughter’s house after hearing the latter’s cries for help, but the former did not see anything except a fallen window. 21 Surely, she would have noticed if her grandchild was injured. Pedro Saman, the baranggay kagawad summoned by Herico, also testified that appellant’s children were in the house when he arrived at the crime scene, 22 but he did not mention anything about an injured child.In any event, the trial court disbelieved the testimonies of the defense witnesses. The well-settled rule is that the trial court’s findings on the credibility of witnesses and their testimonies are accorded great weight and respect, in the absence of any clear showing that some facts or circumstances of weight or substance which could have affected the result of the case have been overlooked, misunderstood or misapplied. 23 Appellant failed to present any reason why this Court should reverse or modify the court a quo‘s ruling.In all, the totality of the evidence presented by the appellant was not sufficient to prove that it was Nano who had started the fracas, and that the former was just acting to defend himself, his family and his home.Second Issue:Crime and PunishmentWe agree with the trial court that the killing of Anchito Nano was qualified by treachery, as alleged in the Information. The essence of treachery is the sudden and unexpected attack, without the slightest provocation on the part of the person attacked. 24 Treachery exists when the offender commits any of the crimes against persons, employing means, methods or forms in the execution thereof which tend directly and especially to insure its execution, without risk arising from the defense which the offended party might make. 25

In the present case, the victim’s lack of awareness of the attack can be gleaned from the nature, the number and the location of his wounds. Furthermore, the testimony of Marianito Rafael, against whom no ill motive was imputed by the appellant, likewise established this fact. The former testified:Q You mean to say that you were present when he was hacked?A Yes, sir.Q In what place was he hacked?xxx xxx xxxA Near the house of Efren Mendoza.Q Why were you there? . . .A Because I asked for water from Emily Mendoza.Q And Anchito Nano was also there?xxx xxx xxxA We were together.xxx xxx xxxQ You mean to say that after you had a drink, Efren Mendoza came?A He came out suddenly.Q . . . [W]here did he come from?A He came from outside of the house.Q What did [he] do upon arriving, if any, this Efren Mendoza?A He suddenly hacked.Q Who?A Anchito Nano.xxx xxx xxxQ How many times was Anchito Nano hacked by Efren Mendoza, if you know?A I only saw once, I ran away after seeing the first hack. 28

Voluntary SurrenderAppellant argues that the mitigating circumstance of voluntary surrender should be appreciated in his favor, because he immediately went to the Municipal Hall and surrendered to the police on the night of the incident.We agree, To establish this mitigating circumstance, the following three requisites must be shown: (a) the offender has not been actually arrested; (2) the offender surrenders himself to a person in authority or the latter’s agent; and (c) the surrender is voluntary. 27 The defense must show intent to surrender unconditionally to the authorities, either because of an acknowledgment of guilt or because of a wish to spare them the trouble and the expense concomitant to the search and the capture of the accused. 28

In this case, all these requisites were proven. Appellant’s assertion that he surrendered was corroborated by Chief Inspector Bayani Aguilar, Vinzons chief of police, who issued a Certification that “one Efren Mendoza . . . voluntarily surrendered [to] this station, including his bolo . . . which was used to hack 3 times a certain Yoyoy Nano . . .” 29 Contrary

to the submission of the solicitor general, 30 the surrender of appellant was unconditional. He readily admitted that he had hacked the victim and subsequently put himself under police custody.Furthermore, we hold that the trial court erred in ruling that voluntary surrender was “offset by the aggravating circumstance of treachery.” 31 The court a   quo failed to appreciate the distinction between a generic aggravating circumstance and a qualifying one.A qualifying circumstance changes the nature of the crime. A generic aggravating circumstance, on the other hand, does not affect the designation of the crime; it merely provides for the imposition of the prescribed penalty in its maximum period. Thus, while a generic aggravating circumstance may be offset by a mitigating circumstance, a qualifying circumstance may not. 32

Treachery in the present case is a qualifying, not a generic aggravating circumstance. Its presence served to characterize the killing as murder; it cannot at the same time be considered as a generic aggravating circumstance to warrant the imposition of the maximum penalty. Thus, it cannot offset voluntary surrender.The Proper PenaltyWhen the crime was committed on July 14, 1993, the penalty for murder was reclusion temporal, in its maximum period, to death. 33 At the time, however, RA 7659 which reimposed the death penalty was not yet in effect. In any event, the presence of the mitigating circumstance of voluntary surrender impels the imposition of the minimum period of the applicable penalty, 34 reclusion temporal (maximum). Applying the Indeterminate Sentence Law, 35 appellant should be sentenced to prision mayor in its maximum period to reclusion temporal also in its maximum period.Civil IndemnityCiting People v. Victor, 36 the solicitor general argues that the civil indemnity should be raised from P50,000 to P75,000. This is erroneous. In the said case, the Court held that “starting with the case at bar, if the crime of rape is committed or effectively qualified by any of the circumstances under which the death penalty is authorized by the present amended law, the Indemnity for the victim shall be in the increased amount of not less than P75,000.00.” Obviously, that ruling, which involved rape and imposed the death penalty, cannot apply to the present case. Hence, consistent with current jurisprudence, 37 we affirm the award of P50,000 as indemnity ex delicto.Likewise, we affirm the award of moral damages in the sum of P30,000 for the anguish and the wounded feelings suffered by the victim’s heirs, which were duly proven.WHEREFORE, the assailed Decision of the Regional Trial Court is AFFIRMED with the modification that appellant is hereby sentenced to an indeterminate penalty of 10 years and 1 day of  prision mayor (maximum) to 17 years, 4 months and 1 day of reclusion temporal (maximum). All other awards are AFFIRMED. No pronouncement as to costs.SO ORDERED.Melo, Vitug, Purisima and Gonzaga-Reyes, JJ., concur.

Qualifying Circumstances cannot offset Ordinary Mitigating CircumstancesOn July 14, 1993 about 7:30 pm in the Municipality of Vinzons, Camarines Norte, Mendoza hacked Anchito Nano with a bolo which led to the instant death of the accused. The trial court found the accused acted with evident premeditation hence convicted him of the crime murder which is punishable by reclusion perpetua. Prior to trial he voluntarily surrendered but it was not appreciated as a mitigating circumstance.ISSUE: Whether or not the trial court erred in ruling that the mitigating circumstance of voluntary surrendered was offset by the aggravating circumstance of treachery.HELD: Treachery is a qualifying circumstance in the present case therefore it cannot offset the mitigating circumstance of voluntary surrender. Therefore, pursuant to the Indeterminate Sentence Law, the accused should be sentenced to prision mayor in its maximum period to reclusion temporal in its minimum period.

G.R. No. L-10016, People v. Aragon, 100 Phil. 1033

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

February 28, 1957

G.R. No. L-10016

THE PEOPLE OF THE PHILIPPINES, plaintiff-appelle,

vs.

PROCESO S. ARAGON, defendant-appellant.

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

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

LABRADOR, J.:

Appeal from a judgment of the Court of First Instance of Cebu finding appellant guilty of bigamy. The facts are not

disputed and, as found by the trial court, are as follows:

On September 28, 1925, the accused, under the name of Proceso Rosima, contracted marriage with a certain Maria

Gorrea in the Philippine Independent Church in Cebu (Exhibits "1" and "1-A"). While his marriage with Maria Gorrea was

subsisting, the accused under the name of Proceso Aragon, contracted a canonical marriage with Maria Faicol on August

27, 1934, in the Santa Teresita Church in Iloilo City.

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

Municipal Treasurer of Iloilo, and a certain Emilio Tomesa, a clerk in the said office (Exhibit "A" and testimonies of

Eulogio Giroy and complainant Maria Faicol). After the said marriage, the accused and Maria Faicol established residence

in Iloilo. As the accused was then a traveling salesman, he commuted between Iloilo where he maintained Maria Faicol,

and Cebu where he maintained his first wife, Maria Gorrea died in Cebu City on August 5, 1939 (Exhibit "2"). After Maria

Gorrea's death, and seeing that the coast was dear in Cebu, the accused brought Maria Faicol to Cebu City in 1940,

where she worked as a teacher-nurse.

It would seem that the accused and Maria Faicol did not live a happy marital life in Cebu, for it appears that in 1949 and

1950, Maria Faicol suffered injuries to her eyes because of physical maltreatment in the hands of the accused. On

January 22, 1953, the accused sent Maria Faicol to Iloilo, allegedly for the purpose of undergoing treatment of her

eyesight. During her absence, the accused contracted a third marriage with a certain Jesusa C. Maglasang on October 3,

1953, in Sibonga, Cebu. (See Exhibits "C", "D", "E" and "F")

The accused admitted having contracted marriage with Jesusa C. Maglasangin Sibonga, Cebu, on October 3, 1953,

Although the accused made an attempt to deny his previous marriage with Maria Faicol, the Court, however, believes

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

said marriage, but also by the testimony of Maria Faicol and of Eulogio Giroy, one of the sponsors of the wedding, and

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

27, 1954).

The Court of First Instance of Cebu held that even in the absence of an express provision in Act No. 3613 authorizing the

filing of an action for judicial declaration of nullity of a marriage void ab initio, defendant could not legally contract

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

latter or by the judicial declaration of the nullity of such marriage, at the instance of the latter. Authorities given for this

ruling are 5 Viada, 5th edition, 651; 35 American Jurisprudence, Marriage, Sec. 46, p. 212; Bickford vs. Bickford, 74 N. H.

466, 69 A. 579.

Appellant in this Court relies on the case of People vs. Mendoza, (95 Phil., 845; 50 Off. Gaz., [10] 4767). In this case the

majority of this Court declared:

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

contracted by any person during the lifetime of his first spouse illegal and void from its performance, and no judicial

decree is necessary to establish its invalidity, as distinguished from mere annullable marriages. There is here no pretense

that appellant's second marriage with Olga Lema was contracted in the belief that the first spouse, Jovita de Asis, had

been absent for seven consecutive years or generally considered as dead, so as to render said marriage valid until

declared null and void by a subsequent court.

We are of the very weighty reasons by Justice Alex Reyes in the dissent in the case above-quoted But this weighty

reasons notwithstanding, the very fundamental principle of strict construction of penal laws in favor of the accused,

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

Our Revised Penal Code is of recent enactment and had the rule enunciated in Spain and in America requiring judicial

declaration of nullity of ab initio void marriages been within the contemplation of the legislature, an express provision to

that effect would or should have been inserted in the law. In its absence, we are bound by said rule of strict

interpretation already adverted to.

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

was not renewed after the death of the first wife and before the third marriage was entered into. Hence, the last

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

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

acquitted, with costs de oficio, without prejudice to his prosecution for having contracted the second bigamous

marriage. So ordered.

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

Separate Opinions

REYES, A.J., dissenting:

I dissent.

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

Article 349 of the Revised Penal Code punishes with prision mayor "any person who shall contract a second or

subsequent marriage before the former marriage has been legally dissolved."

Though the logician may say that there were the former marriage was void there would be nothing to dissolve, still it is

not for the spouses to judge whether that marriage was void or not. That judgment is reserved to the courts. As Viada

says, 'La satidad e importancia del matrimonio no permite que los casados juzguen por si mosmos de su nulidad; esta ha

de someterse [precisamente al juicio del Tribunalcompetente, y cuando este declare la nulidad del matrimonio, y solo

entonces, se tendra por nulo; mientras no exista esta declaracion, la presuncion esta siempre a favor de la validez del

matrimonio, yde consiguiente, el que contrae otro segundo antes de dicha declaracio de nulidad, no puede menos de

incurrir la pena de este articulo. (3 Viada, Codigo Penal, p. 275.)

"This is a sound opinion," says Mr. Justice Tuason in the case of People vs. Jose Cotas, (CA), 40 Off. Gaz. 3145, "and is in

line with the well-known rule established in cases of adultery, that "until by competent authority in a final judgment the

marriage contract is set aside, the offense to the vows taken and the attack on the family exists."

I may add that the construction placed by the majority upon the law penalizing bigamy would frustrate the legislative

intent rather than give effect thereto.

Padilla and Montemayor, JJ., concur.

G.R. No. L-13553, De Ocampo v. Florenciano, 107 Phil. 35

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

February 23, 1960

G.R. No. L-13553

JOSE DE OCAMPO, petitioner,

vs.

SERAFINA FLORENCIANO, respondent.

Joselito J. Coloma for petitioner.

BENGZON, J.:

Action for legal separation by Jose de Ocampo against his wife Serafina, on the ground of adultery. The court of first

instance of Nueva Ecija dismissed it. The Court of Appeals affirmed, holding there was confession of judgment, plus

condonation or consent to the adultery and prescription.

We granted certiorari to consider the application of articles 100 and 101 of the New Civil Code, which for convenience

are quoted herewith:

ART. 100.—The legal separation may be claimed only by the innocent spouse, provided there has been no condonation

of or consent to the adultery or concubinage. Where both spouses are offenders, a legal separation cannot be claimed

by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition.

ART. 101.—No decree of legal separation shall be promulgated upon a stipulation of facts or by confession of judgment.

In case of non-appearance of the defendant, the court shall order the prosecuting attorney to inquire whether or not a

collusion between the parties exists. If there is no collusion, the prosecuting attorney shall intervene for the State in

order to take care that the evidence for the plaintiff is not fabricated.

The record shows that on July 5, 1955, the complaint for legal separation was filed. As amended, it described their

marriage performed in 1938, and the commission of adultery by Serafina, in March 1951 with Jose Arcalas, and in June

1955 with Nelson Orzame.

Because the defendant made no answer, the court defaulted her, and pursuant to Art. 101 above, directed the

provincial fiscal to investigate whether or not collusion existed between the parties. The fiscal examined the defendant

under oath, and then reported to the Court that there was no collusion. The plaintiff presented his evidence consisting

of the testimony of Vicente Medina, Ernesto de Ocampo, Cesar Enriquez, Mateo Damo, Jose de Ocampo and Capt.

Serafin Gubat.

According to the Court of Appeals, the evidence thus presented shows that "plaintiff and defendant were married in

April 5, 1938 by a religious ceremony in Guimba, Nueva Ecija, and had lived thereafter as husband and wife. They begot

several children who are now living with plaintiff. In March, 1951, plaintiff discovered on several occasions that his wife

was betraying his trust by maintaining illicit relations with one Jose Arcalas. Having found the defendant carrying marital

relations with another man plaintiff sent her to Manila in June 1951 to study beauty culture, where she stayed for one

year. Again, plaintiff discovered that while in the said city defendant was going out with several other men, aside from

Jose Arcalas. Towards the end of June, 1952, when defendant had finished studying her course, she left plaintiff and

since then they had lived separately.

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

Nelson Orzame. Plaintiff signified his intention of filing a petition for legal separation, to which defendant manifested her

conformity provided she is not charged with adultery in a criminal action. Accordingly, plaintiff filed on July 5, 1955, a

petition for legal separation."

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

Arcalas had prescribed, because his action was not filed within one year from March 1951 when plaintiff discovered her

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

As to the adultery with Nelson Orzame, the appellate court found that in the night of June 18, 1955, the husband upon

discovering the illicit connection, expressed his wish to file a petition for legal separation and defendant readily agreed

to such filing. And when she was questioned by the Fiscal upon orders of the court, she reiterated her conformity to the

legal separation even as she admitted having had sexual relations with Nelson Orzame. Interpreting these facts virtually

to mean a confession of judgment the Appellate Court declared that under Art. 101, legal separation could not be

decreed.

As we understand the article, it does not exclude, as evidence, any admission or confession made by the defendant

outside of the court. It merely prohibits a decree of separation upon a confession of judgment. Confession of judgment

usually happens when the defendant appears in court and confesses the right of plaintiff to judgment or files a pleading

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

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

as there is evidence of the adultery independently of such statement, the decree may and should be granted, since it

would not be based on her confession, but upon evidence presented by the plaintiff. What the law prohibits is a

judgment based exclusively or mainly on defendant's confession. If a confession defeats the action ipso facto, any

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

The mere circumstance that defendants told the Fiscal that she "like also" to be legally separated from her husband, is

no obstacle to the successful prosecution of the action. When she refused to answer the complaint, she indicated her

willingness to be separated. Yet, the law does not order the dismissal. Allowing the proceeding to continue, it takes

precautions against collusion, which implies more than consent or lack of opposition to the agreement.

Needless to say, when the court is informed that defendant equally desires the separation and admitted the commission

of the offense, it should be doubly careful lest a collusion exists. (The Court of Appeals did not find collusion.)

Collusion in divorce or legal separation means the agreement.

. . . between husband and wife for one of them to commit, or to appear to commit, or to be represented in court as

having committed, a matrimonial offense, or to suppress evidence of a valid defense, for the purpose of enabling the

other to obtain a divorce. This agreement, if not express, may be implied from the acts of the parties. It is a ground for

denying the divorce. (Griffiths vs. Griffiths, 69 N. J. Eq. 689 60 Atl. 1099; Sandoz vs. Sandoz, 107 Ore. 282, 214 Pas. 590.)

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

committed although it was not, or if the parties had connived to bring about a legal separation even in the absence of

grounds therefor.

Here, the offense of adultery had really taking place, according to the evidence. The defendant could not have falsely 

told the adulterous acts to the Fiscal, because her story might send her to jail the moment her husband requests the

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

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

to the offense and thus enables the other party to procure evidence necessary to prove it. (Williams vs. Williams, [N. Y.]

40 N. E. (2d) 1017; Rosenweig vs. Rosenweig, 246 N. Y. Suppl. 231; Conyers, vs. Conyers, 224 S. W. [2d] 688.)

And proof that the defendant desires the divorce and makes no defense, is not by itself collusion. (Pohlman vs. Pohlman,

[N. J.] 46 Atl. Rep. 658.)

We do not think plaintiff's failure actively to search for defendant and take her home (after the latter had left him in

1952) constituted condonation or consent to her adulterous relations with Orzame. It will be remembered that she "left"

him after having sinned with Arcalas and after he had discovered her dates with other men. Consequently, it was not his 

duty to search for her to bring her home. Hers was the obligation to return.

Two decisions[[3]] are cited wherein from apparently similar circumstances, this Court inferred the husband's consent to

or condonation of his wife's misconduct. However, upon careful examination, a vital difference will be found: in both

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

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

decree a legal separation between these spouse, all the consequent effects. Costs of all instances against Serafina

Florenciano. So ordered.

Paras, C. J., Padilla, Montemayor, Labrador, Concepcion, Reyes, J. B. L., Endencia, Barrera, and Gutierrez David, JJ., 

concur.

G.R. No. 1056, Benedicto v. De La Rama, 3 Phil. 34

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

December 8, 1903

G.R. No. 1056

AGUEDA BENEDICTO, plaintiff-appellee,

vs.

ESTEBAN DE LA RAMA, defendant-appellant.

Jovito Yusay and Ledesma and Sumulong for appellant.

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

WILLARD, J.:

This is an action for divorce. The complaint, which was filed on October 29, 1901, alleged, as the grounds therefor,

abandonment and adultery. The answer charged the plaintiff with adultery, denied the adultery imputed to the

defendant, and asked for a divorce. Judgment was rendered on July 5, 1902, in favor of the plaintiff, granting her divorce

and 81,042.76 pesos as her share of the conjugal property. The defendant excepted to the judgment and moved for a

new trial on the ground that the facts were not justified by the evidence. This motion was denied, and the defendant

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

(1) The first question which we find it necessary to decide is whether or not the Courts of First Instance now have

jurisdiction of divorce cases, and if they have, on what law it is based.

The court below assumed that the provisions of the Civil Code relating to divorce, contained in title 4 of book 1, are still

in force. In this we think there was error.

By the roval decree of July 31, 1889, the Civil Code as it existed in the Peninsula was extended to the Philippines. The

"cumplase" of the governor-general was affixed to this decree on September 12, 1889. The Code was published in

the Gaceta de Manila on November 17, 1889, and took effect as a law on December 8, 1889. On December 31, 1889, the

following order was published in the Gaceta de Manila:

GENERAL GOVERNMENT OF THE PHILIPPINES,

SECRETARY'S OFFICE, BUREAU NO. 2,

Manila, December 29, 1889.

By direction of Her Majesty's Government, until further order, titles 4 and 12 of the Civil Code, extended to these Islands

by royal decree of July 31 last, published in the Gazette of this city of the 17th of November last, are suspended in this

Archipelago.

The proper authorities will issue the necessary orders to the end that in lieu of the two titles so suspended the former

law may continue in force.

This order will be communicated and published.

WEYLER.

This order purports to have been issued by the governor-general by order of the Government of Madrid, and although it

is stated in the Compilacion Legislativa de Ultramar (vol. 14, p. 2740) that no decree of this kind was ever published in

the Gaceta de Madrid and that a copy thereof could not be obtained in any governmental office, yet we can not assume

that none was ever issued.

Sanchez Roman says: "By reason of the lack of that preparation which was proper in a matter of such great importance,

it seems, according to reports which merit a certain amount of credit (for no order has ever been published which

reveals it), that the Government of the Philippines, after taking the opinion of the audiencia of Manila, consulted the

colonial office concerning the suspension of titles 4 and 12 of book 1. This opinion was asked in respect to title 4 on

account of certain class influences which were strongly opposed to the application of the formula of marriage which

gave some slight intervention to the authorities of the State through the municipal judge or his subtitutes in the

celebration of the canonical marriage. As to title 12, the opinion was asked by reason of the fact that there was no such

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

Moreover, the power of the governor-general, without such order to suspend the operation of the Code, was well

settled. A royal order so stating was issued in Madrid on September 19, 1876, and with the cumplase of the governor-

general published in theGaceta de Manila on November 15, 1876.

It was suggested at the argument that this order of the suspension was inoperative because it did not mention the book

of the Code in which the suspended titles 4 and 12 were to be found. The Civil Code contains four books. All of them

except the third contain a title numbered 4, and the first and fourth contain a title numbered 12. Title 4 of book 2 deals

with rights of property in water and mines and with intelectual property. Title 4 of book 4 relates to the contract of

purchased and sale, and title 12 to insurance and other contracts of the class. There is no such intimate relation between

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

the other to the civil registry. The history of the Law of Civil Marriage of 1870 is well known. As a consequence of the

religious liberty proclaimed in the constitution of 1869 the whole of the law was in force in the Peninsula. But that basis

was wanting in these Islands, and prior to the promulgation of the Civil Code in 1889 no part of the law was in force

here, except articles 44 to 78, which were promulgated in 1883. Of these articles those numbered 44 to 55 are found in

title 4, but they relate merely to the rights and obligations of husband and wife and do not touch the forms of marriage

nor the subject of divorce. If these provisions of the Civil Code on these subjects could be suspended by the certain class

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

competent to declare a divorce would be ecclesiastical. There can be no doubt but that the order of suspension refers to

titles 4 and 12 of book 1, and it has always been so understood. It follows that articles 42 to 107 to the Civil Code were

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

While General Orders, No. 68, promulgated by the Military Government on December 18, 1899, treats of marriage and

nullity of marriage, it says nothing about divorce. To find the law application to this subject resort must be had to the

legislation relating thereto in force in the Islands prior to 1889. It seems necessary to ascertain in the first place what

laws on the subject were in force in the Peninsula and afterwards if any of them had been extended to the Philippines.

The canon law, which the ecclesiastical courts administered both in Spain and here, had not as such any binding force

outside of the church. However, any part of the canon law which by proper action of the civil authorities had become a

civil law stood upon the same footing as any other law of Spain. This happened in the case of the decree of the council of

Trent. That those decrees have in Spain the force of a civil law is well settled. "The decrees of the council of Trent have in

Spain force of law" (1 Practica General Florense, Zuniga, 260). In the preface to the Law of Civil Marriage of 1870, its

author, Montero Rios, says: "Philip II accepting as law of the State by royal cedula dated in Madrid the 12th of July, 1554,

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

Recopilacion and is now Law 13, title 1, book 1, thereof. The same thing is declared in article 75 of the present Civil Code,

which is as follows: "The requisites, form, and solemnities for the celebration of canonical marriages shall be governed

by the provisions of the Catholic Church and of the holy council of Trent, accepted as laws of the Kingdom." It may be

doubted, notwithstanding, if these decrees, even if considered as extended to the Philippines and in force here, furnish

any aid in the solution of the question. The canonists hold that they do declare adultery to be a ground for divorce (2

Procedimientos Eclesiasticos, Cadena, p. 211). This is, however, more by deduction than otherwise. The causes for

divorce are nowhere distinctly stated therein. The seventh canon of the twenty-fourth session (November 11, 1563),

relied upon by the ecclesiastical writers, does not say that adultery is a ground for a separation; it simply says that it is

not a ground for a divorce from the bond of matrimony. The eight canon of the same session, while it declares that the

church may direct the separation of the spouses for many causes, does not state what those causes are. The laws of the

church which do state what these causes are have not the force of the civil laws.

The Decretal law of December 6, 1868, abolishing in the Peninsula the special jurisdictions, was extended to the

Philippines by a royal order of February 19, 1869, which was published in the Gaceta de Manila on June 2, 1869. That

Decretal Law contained the following provision:

The ecclesiastical courts shall continue to take cognizance of matrimonial and eleemosynary causes and of ecclesiastical

offenses in accordance with the provisions of the canon laws. They shall also have jurisdiction over causes of divorce and

annulment of marriage as provided by the holy council of Trent; but incidents with respect to the deposit of a married

woman, alimony, suit money, and other temporal affairs shall pertain to the ordinary courts.

This did not have the effect of making the canons mentioned therein civil laws. It simply declared that the church might

try the cases referred to according to its own laws in its own courts and that the State would enforce the decrees of the

latter.

It is not necessary, however, to decide this question as to the decrees of the council of Trent, for the  partidas do contain

provisions relating to the subject of divorce. Law 1, title 10, of the fourth partida, defines divorce as follows:

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

separated from the husband, and the husband from the wife, on account of some impediment existing between them,

when it is properly proved in court. And whoever separates the parties in any other way, doing it by force, or contrary to

law, will go against that which is said by Jesus Christ, in the Gospel: "those whom God path joined together, let no man

put asunder." But when the spouses are separated by law, it is not then considered that man separates them, but the

written law, and the impediment existing between them. And divortiotakes its name from the separation of the wills of

man and woman, which are in a contrary state when separated, to what they were when the parties were united.

Law 2 of the same title is as follows:

Properly speaking there are two forms of separation to which the name of divorce may be given and two reasons

therefor; there are many reasons which bring about the separation of those who appear to be married but are not so by

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

Religion authorizes divorce on this ground: That if any persons there be lawfully married, there not existing between

them any of the impediments upon which the marriage might be dissolved, if either of them after they have been

carnally joined should desire to take holy orders and the other should grant permission, the one desiring to remain in

the world promising to live a life of chastity and being so aged that none can suspect that such spouse will be guilty of

the crime of fornication and the other enter into the order in this manner, a separation results which may properly be

called divorce, but it must be made by order of the bishop or some other of the prelates of holy church who have

authority therefor. Furthermore, if the wife offends her husband by the crime of fornication or adultery, this is another

reason which we say may properly be a ground for divorce. The accusation is to be brought before the judge of the holy

church and proof made of the fornication or adultery, as set forth in the preceding title. The same would result should

one of the spouses commit spiritual fornication by becoming a heretic or a Moor or a Jew, if he or she should refuse to

eschew this evil. And the reason why this separation which is authorized by reason of these two things, either religion or

fornication, is properly called divorce, in distinction from separation which results from other impediments, is that,

although it separates those who were married as stated in this law and the preceding one, the marriage nevertheless

subsists, and thus it is that neither one of them can contract a second marriage at any time excepting in the case of a

separation granted by reason of adultery, in which case the surviving spouse may remarry after the death of the other.

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

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

Husband and wife may accuse each other, in another way than those mentioned in the preceding law; and that is for

adultery. And if the accusation be made with a view to separating the parties from living together, or from having any

commerce with each other, no other person but the spouses themselves can make an accusation for such a cause, and it

ought to be made before the bishop or the ecclesiastical judge (official) either by the parties themselves or their

attorneys. . . . And in all the various ways in which the husband can accuse the wife, mentioned in these two laws, the

wife may in like manner, according to holy church, accuse him, if she choose; and she ought to be heard, as he is

himself." While Law 2 of title 10 seems to speak only of the adultery of the wife, this clearly gives the wife the right to

accuse the husband of adultery for the purpose of securing a separation. So does Law 13, title 9,  partida 4.

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

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

consent of the other, after they have known each other carnally. And notwithstanding they separate for one of these

causes, no longer to live together, yet the marriage is not dissolved on that account." Law 4, title 10, partida 4, is to the

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

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

parties should turn heretic or Jew or Moor or should commit adultery. Nevertheless, for any of these causes they may be

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

another, according to what is said in the title on the clergy, in the law which begins with the words "otorgandose 

algunos."

The partidas contain other provisions in regard to the form of the libel (Law 12, title 9,partida 4), and Law 7, title

10, partida 4, confers jurisdiction upon the church in cases of divorce.

That either spouse has been guilty of adultery is a defense to his or her suit (Law 8, title 2, partida 4), so is the fact that

he has pardoned her (Law 6, title 9, partida 4). And if, after a divorce has been granted to the husband, he commit

adultery, there is a waiver of the judgment (Law 6, title 10, partida 4).

Were these provisions of the partidas in force in the Islands prior to 1889? The general rule was that laws of the

Peninsula did not rule in the colonies unless they were expressly extended to them. As to certain laws, this result was,

however, accomplished in another way. An examination of the Laws of the Indies will show that they are almost without

exception of an administrative character. They deal with the relations of the citizen to the church and to the

Government and some of them to matters of procedure. The laws which treat of the rights of citizens between

themselves are few. This fact leads to the promulgation of the law which appears as Law 2, title 1, book 2, of

the Recopilacion de las Leyes Indias. The last part of Law 1 of that title and said Law 2 are as follows:

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

these Kingdom of Castile shall be followed in the decision of causes in accordance with the following law. (Law 1.)

We order and command that in all causes, suits, and litigations in which the laws of this compilation do not provide for

the manner of their decision, and no such provision is found in special enactments passed for the Indies and still

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

followed, in conformity with the law of Toro, both with respect to the procedure to be followed in such cases, suits, and

litigations, and with respect to the decision of the same on the merits. (Law 2.)

This law of Toro; designating the order in which the different bodies of law should be applied, is now found in book 3,

title 2, Law 4 of the Novisima Recopilacion.

In the royal cedula of Carlos, dated May 18, 1680, declaring the force of this compilation, the commands of this Law 2

are practically repeated. By the operation of this law, first enacted in 1530, those laws of the  partidas hereinbefore

referred to relating to divorce, upon the discovery and settlement of the Philippines became at once effective therein.

They have remained in force since as civil laws of the state as distinguished from the laws of the church. It may be added

also that upon them the ecclesiastical courts apparently in part relied in determining cases for divorce pending before

them. They are cited as authorities by the writers upon ecclesiastical law. (3 Procedimientos Eclesiasticos, Salazar and La

Fuente, p. 9; Practica Forense, Rodriguez, pp. 410, 413; 2 Practica General Forense, Zuniga, p. 90; 2 Procedimientos

Eclesiasticos, Cadena, p. 210.)

Being in force on August 13, 1898, they continued in force with other laws of a similar nature. (Am. Ins. Co. vs. Canter, 1

Pet., 511; proclamation of General Merritt, August 14, 1898). There is nothing in the case of Hallett vs. Collins (10 How.,

175) which is inconsistent with this result. In fact that case assumes that the law of the partidas regarding matrimony

was in force in Louisiana, this conclusion being reached, however, without taking into consideration the above-

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

The partidas recognized adultery as a ground for divorce. Therefore, according to the civil as well as the canonical law in

force here on August 13, 1898, the commission of that offense gave the injured party the right to a divorce. That

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

American Government of church and state, while it changed the tribunal in which this right should be enforced, could

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

jurisdiction formerly possessed by them is now vested in Courts of First Instance, by virtue of Act No. 136. Section 56,

first and fifth paragraphs of that act, provides that "Courts of First Instance shall have original jurisdiction, first, in all civil

actions in which the subject of litigation is not capable of pecuniary estimation; fifth, . . . and in all such special cases and

proceedings as are not otherwise provided for."

The result is (1) that Courts of First instance have jurisdiction to entertain a suit for divorce; (2) that the only ground

therefor is adultery; (3) that an action on that ground can be maintained by the husband against the wife, or by the wife

against the husband; and (4) that the decree does not dissolve the marriage bond. The Court of First Instance of Iloilo,

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

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

decision were not justified by the evidence, it becomes necessary to examine that evidence.

The adultery of the defendant was duly proved.

The finding that the plaintiff had not committed adultery is, however, plainly and manifestly against the weight of the

evidence. We arrive at this result from a consideration chiefly of the admitted facts in the case, the most important of

which is the letter written by the plaintiff to the defendant on March 6, 1899, and found at pages 168 and 195. This is in

itself practically conclusive against her. A portion of that letter is as follows:

E., I still fell ashamed for the past, although it is seven years since we separated. For this, then, Esteban, pardon me for

pity's sake. Wipe out the past. Remember me for the love of God. Contemplate our unhappy fate. To you I look to

assuage my sorrow. E., I have heard that you have had some misfortunes lately. I send my sympathy, although I am

unworthy of your presence.

The significant words "I am unworthy of you presence" probably escaped the attention of the judge below, because he

has not quoted them. The contention of the appellee is that the wrong for which the plaintiff sought pardon was that of

having asked for an allowance. This contention can not for a moment be sustained. A woman does not ask her husband

to blot out the past, to have compassion on her, and, most important of all, does not say that she is unworthy of his

presence simply because she has asked him for an allowance, something to which, according to her own belief, she had

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

It is admitted that the plaintiff and defendant had lived happily together from the time of their marriage in July, 1891, to August, 1892. It is also admitted that then the defendant suddenly, without any previous warning, took his wife to the house of her parents, left her there, and never lived with her afterwards. There must have been some reason for this sudden change. The court below says that it was because the defendant had tired of his wife. There is nothing in the evidence to support this theory. In her complaint the plaintiff charges the defendant with having committed adultery with Gregoria Bermejo in 1892. She produced no evidence to support this allegation as to the time. No one of the six witnesses for the plaintiff upon this charge fix any date prior to 1894. The other two charges relate to 1899 and 1901. There is no evidence in the case from which a judge would be justified in finding that from the separation in 1892 to some time in 1894 the defendant had been unfaithful to his marriage vow. And the judge below made no such finding.Two witnesses, Epifanio Lacson and Doroteo Garcia, who testified as to charge in connection with Gregoria, speaks of a woman brought by the defendant to Negros in 1892. But an examination of their evidence will show that it is entirely insufficient to prove any illicit relations between this woman and the defendant. In view of the evidence which the plaintiff did present in this case, we think it safe to say that if the conduct of the defendant during the years 1892 and 1893 had furnished any ground for suspicion the plaintiff would have been able to produce evidence thereof at the trial. She did not do so. The lack of this evidence destroys the theory of the court below and of the appellee that the defendant expelled the plaintiff from his house he was tired of her and desired the company of other women. That theory is entirely inadequate to explain the sudden termination of their marital relations.The event is, however, to our minds, correctly explained by the testimony of the defendant. The separation and the letter written by the plaintiff from which we have quoted can only be explained on the supposition that this testimony of the defendant is true. He stated that on his return from an inspection of one of his estates his wife's maid gave him a letter in the handwriting of his wife and directed to her lover, a Spanish corporal of the civil guard, named Zabal. She admitted the genuineness of the letter, fell upon her knees, and implored him to pardon her. That same day he took her to the home of her parents, told what had occurred, and left her there.That the testimony in regard to this letter is not a fabrication of recent date is shown by the evidence of the plaintiff's mother, one of her chief witnesses. The mother testified that about a year after her daughter was returned to her she heard that the defendant believed that illicit relations existed between Zabal and the plaintiff on account of a certain letter. She heard Zabal's name mentioned by a sergeant of police in 1893 or 1894. This may have been the sergeant of the civil guard who, according to the testimony of Domingo Jardelesa, was the cause why the latter did not deliver to the plaintiff a letter intrusted to him for her by Zabal after her separation from her husband.The evidence showing the adultery who testified to facts conclusively showing the adultery is severely criticized by the court below and the counsel for the plaintiff. That criticism relates in a large degree to the matter of time and dates. If this direct evidence were the only evidence in the case we should not, perhaps, disturb the finding of the court. But when it is in its essential points corroborated by the admitted facts which we have heretofore recited, there is left, in our opinion, no doubt whatever of the guilt of the plaintiff.It is said that if the plaintiff is guilty the defendant has condoned the offense. It is not necessary to determine upon this point where the truth lies for two reasons: (1) the court below made no finding of fact on the subject; (2) even if it had found that there was condonation this would not have entitled the plaintiff to a divorce.By Law 6, title 9, partida 4, the wife can defeat the husband's suit for divorce by proving that he has pardoned her. But we have found no laws in the partidas which say that the effect of that pardon would be so far-reaching as to entitle her to a divorce against him in a case like the present one. On the contrary it is expressly provided in Law 8, title 2,partida 4, as follows:For the sin of each one of them is of itself a bar to an accusation against the other.Our conclusion is that neither one of the parties is entitled to a divorce.The result makes it unnecessary to consider that part of the judgment which relates to the settlement of the conjugal partnership.Section 497[[1]] authorizes us in cases of this kind "to make such findings upon the facts and render such final judgment as justice and equity require."The judgment below is reversed, and we find from the evidence the following facts:(1) The allegations of the complaint as to the marriage of the parties and as to the acts of adultery committed by the defendant are true as therein stated except as to the date of the adultery committed with Gregoria Bermejo.(2) The plaintiff, in the summer of 1892, at Talisay, in the Province of Occidental Negros, committed adultery with one Zabal, a corporal of the civil guard.As conclusion of law from the foregoing facts we hold that neither party is entitled to judgment of divorce against the other; that judgment be entered that the plaintiff take nothing by her action or the defendant by his cross demand, and that neither party recover of the other any costs either in this court or the Court of First Instance.Judgment will be entered accordingly forty days from the filing of this decision, and the case remanded to the court below for execution. So ordered.Arellano, C. J., Torres and Mapa, JJ., concur.McDonough, J., dissents.Johnson, J., took no part.Separate OpinionsCOOPER, J., dissenting:

It is immaterial whether a divorce a mensa et thoro is governed by the provisions contained in Title IV of book 1 of the Civil Code, by the canonical law, or by the Laws of the partidas. Under each the causes for divorce are substantially the same, one of which is for adultery.The conclusion reached by the majority of the court is that both plaintiff and defendant have been guilty of adultery, and that therefore neither is entitled to relief.In entering upon a review of the evidence and a discussion of this question it is proper to refer to our statute upon the subject of a review by this court, of evidence, and to determine in what cases it is allowed and the rules which govern where such review is permitted.It is provided in section 497 of the Code of Civil Procedure that the Supreme Court shall not review the evidence taken in the court below nor retry the questions of fact except " . . . 3. If the excepting party filed a motion in the Court of First Instance for a new trial upon the ground that the findings of fact were plainly and manifestly against the weight of evidence, and the court overruled said motion and due exception was taken to his overruling the same, the Supreme Court may review the evidence."The motion for a new trial filed in the court below was based upon the ground that the "findings of fact were contrary to the proofs presented on the trial."Is this a sufficient compliance with the provisions above cited, it not being stated in the motion "that the findings of fact were plainly and manifestly against the weight of evidence?"If this provision of the code stood alone, the failure to comply with this requirement might be regarded as simply a defect in the motion, but construed in connection with the other provisions the question becomes a different one. Under the provisions of section 145 of the Code of Civil Procedure the Court of First Instance may, at any time during the term at which an action has been tried, set aside the judgment and grant a new trial on the ground that the evidence was insufficient to justify the decision, or that it is against law; but it is expressly provided in this connection by section 146 that the overruling or granting of a motion for a new trial shall not be a ground of exception, " but shall be deemed to have been an act of discretion on the part of the judge."But even if the conclusion should be reached that the motion is sufficient to authorize a review of the evidence, still this court must be restricted in reviewing the evidence and in retrying the facts by the provisions contained in clause 3, section 499, and the judgment of the lower court should not be reversed unless the findings of the court were plainly and manifestly against the weight of evidence.It is very clear from these provisions it was the intention of the legislative department that the findings of fact made by a judge of the Court of First Instance should be entitled to all the weight that a verdict of a jury has in those jurisdiction where jury trial prevail, and that the findings of fact, like the verdict of the jury, should not be disturbed where the evidence is merely conflicting. The reason for this is that the trial court, having the witnesses before it, is most competent to judge of the weight to be attached to their testimony, and that it is not sufficient that the appellate court, looking at their testimony as it is written down, would have come to a different conclusion.Where there is a direct and substantial conflict, and the determination of a question depends on the credibility and weight to be given to the testimony of witnesses, the rule is the court will not set aside the findings even where they might have found the other way. That the question of credibility of witnesses is for the court below, and not for the appellate court, to determine is supported by decisions of many courts of the United States.It is on account of the superior means that a trial judge has by reason of the presence of the witnesses, and the observance of their demeanor while testifying, that such a rule exists.It appears from the decision of the trial judge that he placed no little stress upon the appearance and demeanor of the witnesses. With reference to the testimony of the woman Apolonia Aurelio, upon the credibility of whose testimony the case as to the adultery of the plaintiff largely rests, he says:That the testimony of this woman Apolonia is too uncertain and too suspicious to justify any court in declaring the plaintiff guilty of adultery, especially when the worthlessness and the dubious character of the testimony of the other witnesses for the defendant of this subject increases the probability of the existence of something in the nature of a conspiracy to destroy the case of the plaintiff and support that of the defendant in the present case.There are other considerations in the evidence, as well as in the atmosphere of the court room and the demeanor of the parties during the trial, which inclined the court to believe at that time that the true facts of this case were with the plaintiff.Again, he says:This court does not hesitate to say that the attitude of the plaintiff was such as to impress the court very favorably in her behalf. Not a particle of vindictiveness toward the man who, as she believes, has so unjustly treated her, was exhibited by her; her entire bearing was that of modest, retiring, self-respecting, and conscientious woman.Again, speaking of the testimony of the woman Apolonia, he says:The plaintiff and the plaintiff's mother both swore that this woman, Apolonia, never commenced to work for the plaintiff until after the year 1893, after the couple had separated, and that she was then sent by the husband to the wife as a servant. The wife also says that trouble arose between her and this woman, Apolonia, subsequent to 1893, by reason of the fact that Apolonia was about to marry a man whom the wife disliked. This statement is not denied by any of the defendant's witnesses. It therefore shows that a motive exists on the part of this woman, Apolonia, to injure the wife. There is also evidence in the case tending to show that this woman, Apolonia received a large sum of money shortly before the trial of this case, which money came from the defendant for some of his agents.The court, however, does not regard this testimony as of great importance, because it is too vague, but the other testimony is very important. The attitude of the woman, Apolonia, on the witness stand was apparently hostile to the plaintiff.

An examination of the evidence of the case not only shows that the findings of fact by the Court of First Instance are not plainly and manifestly against the weight of evidence, but the preponderance of evidence seems in favor of the plaintiff, especially upon the question of condonation.I shall not attempt to review the mass of testimony found in the record. In view of the many conflicts occurring in the statements of the witnesses, the many inconsistencies in the testimony of material witnesses, the suspicion cast upon some of the witnesses ? it is clear that this is a case in which the trial judge possessed advantages far superior to those of this court in passing upon the credibility of the witnesses who testified in the case, and gave due weight to such as were entitled to belief, and the rule applies with peculiar force that an appellate court will not disturb the finding of a trial court when these findings depend upon the credibility of witnesses.It is stated in the majority opinion that the conclusion that the plaintiff was guilty of adultery was arrived at from a consideration chiefly of the admitted facts in the case, the most important of which is a written by the plaintiff to defendant on March 6, 1899; that this letter is considered as practically conclusive against her. The entire letter, extracts of which are given in the majority opinion, is as follows:MY RESPECTED AND UNFORGETTABLE ESTEBAN: Pardon that I disturb your tranquillity, E., that in the midst of a profound sentiment that affects me I find consolation for my profound grief in addressing the man who loved me in the time of my good fortune, and who led me to the altar before the eyes of the Being whom we most love, God. Remember me; let all down a drop of compassion from your soul; look at me back again with your cheerful eyes at the woman who is watching for you. I know well that you are very disgusted with me, and for just reason ? for having claimed my pension. Be calm; quiet yourself; reflect for a moment my situation, which I will explain to you.When you went to Europe mother went to see you to explain our situation to you, and you answered that it had nothing to do with you. She insulted you, Esteban; you had reason to be offended.Now, regarding my having demanded my pension, you are also in the right, but pardon my impudence in stating what I have to say:I swear to you, E., and call God to witness, that when you went to Spain my pain was unbearable, thinking of my misfortune. I had become completely desperate, and Orozco wrote and advised me to demand my pension in view of the fact that you were going to reside permanently in Spain; then I finally did commence proceedings in view of my desperate situation, and nothing further came of the matter during your absence.If the Lacsons, who wish me ill, have told you more they have made a mistake, for the truth about my comportment is that it can not be complained of. You can secure information regarding my conduct during our separation here in Valladolid.I keep yet on my face the shame of what has happened, notwithstanding that it has been already many years since we parted. Therefore, my husband, forgive me; erase what has happened; remember me for God's love; behold our dark fate; in you I trust my future.E., I have heard that you had some misfortunes. I send my sympathy, although I am unworthy of your presence. I also learned from Modesto that you do not wish to have my pension sent. Do as you wish. Good bye, E., take good care of yourself, and command,Your faithful servant, Q. B. S. P.,AGUEDA BENEDICTO.March 6, 1899.P. S. - On the 11th of February papa died, and delivered his soul to God after a painful illness.This letter, upon which so much stress has been placed in the opinion of the majority, as showing the guilt of the plaintiff, rather indicates that the writer was in a morbid state of mind, in great distress and dejection of spirit, and, in her own language, "completely desperate." It shows a willingness to prostrate herself before her husband, to subject herself to his will, to confess any manner of misdoings which will appease his wrath, and regain his favor without regard to innocence or guilt. This is evident when she says: "I know that you are disgusted with me for having claimed my pension" when it is remembered that the wife is entitled to one-half of all property acquired as gains during the marriage, as community property; that at the time this letter was written, the husband was not only in the enjoyment of a large estate in his separate right but was in the exclusive possession and enjoyment of all of the community property accumulated during eight years of marriage, one-half of which belonged to her, yet we find her confessing herself as guilty for claiming as small pittance of what belonged to her, and apologizing for having taken at some previous time steps to compel him to do that which good conscience should have dictated to him as just and right.It is hard to conceive that the letter was the result of remorse of conscience for sins committed against the husband when it appears from the record that the husband, after their separation, during the space of ten years, maintained illicit relations with no less than four mistresses, three of whom bore him offspring; and that there had been a betrayal of the confidence of the wife, a near relative, when a girl less than 14 years of age, which fact a sense of shame did not restrain the defendant from disclosing in his testimony on the trial of the case.With reference to the question of condonation, it will be seen from the citation contained in the majority opinion that this doctrine is recognized by Law 6, title 9,partida 4. It exists in the ecclesiastical law and is recognized in the United States and England and in all countries where laws of divorce exists.But it is stated in the majority opinion that there is no law to be found in the partidaswhich says that the effect of pardon would be so far-reaching as to make it applicable to this case.By condonation the offending party is restored to the same position he or she occupied before the offense was committed, the only condition being that the offense must not be repeated. To say that the effect of pardon would not be so far-reaching as to entitle the plaintiff to divorce, in a case like the present one, is equivalent to saying that because

the plaintiff has been once guilty she would forever lose her right to a divorce for offenses of a like character thereafter committed by the husband. This makes condonation conditioned, not only that the parties receiving it will not gain commit the same offense, but it adds the further condition that the party granting it shall forever have the right to commit the same offense himself with impunity.This question has often been before the courts. The American authorities are uniform that a condoned offense, not being sufficient as a cause for divorce, is not a bar to divorce in favor of the plaintiff. (9 Am. and Eng. Enc. of Law, 821.)In Masten vs. Masten (15 N. H.) it is said: "Where the statutes are silent upon this question the courts hold that as a condoned offense can not be a cause for divorce, therefore it can not be set up as a bar in recrimination."In Jones vs. Jones (18 N. J. Eq., 33) it is said: "It is better to hold that when the erring party is received back and forgiven the marriage contract is renewed and begins as res integer, and that it is for the party and not for the courts to forgive new offenses."In the case of Cumming vs. Cumming (135 Mass., 390) the court says:To hold otherwise would operate to some extent as an encouragement or license to the condoning party to commit offenses against the marriage relation; would also tend to give a constant sense of inequality between the parties with respect to their legal rights. All condonation is in a sense conditional ? that is, there is an implied condition that the same offense shall not be repeated. It is not, however, attended with the further condition that the offender shall be disqualified from thereafter alleging any ground of complaint for subsequent misconduct against the condoning party. No such inequality should be established by an arbitrary rule of law applicable to all cases. Condonation restores equality before the law. If the injured party is willing to forgive the offense the law may well give full effect to that forgiveness and not extend to such party the temptation, the encouragement, the license to run through the whole calendar of matrimonial offenses, without redress at the hands of the party. We have not overlooked the consideration that an original adultery by a libellant may have had the effect to weaken the sense of the obligation of the marriage contract on the part of the libelee, and that for this reason a divorce under such circumstances ought to be refused. This consideration is of weight, and would deserve especial attention if judicial discretion were to exercised in determining a case, but it is not sufficient to overcome the controlling reasons in favor of the establishment of a general rule to the contrary."A finding of the lower court against condonation would have been plainly and manifestly against the weight of evidence.It is shown by the evidence that the next day after the supposed adultery of the wife the defendant took his wife to the house of her parents. Andrea de la Rama, the mother of the plaintiff, testifies that when the defendant brought the plaintiff to her house she supposed it was on a visit; that they remained at her house about a week; that during their stay the plaintiff and defendant slept in the same room, and that there was only one bed in the room that they occupied.The plaintiff testified that on this occasion she and her husband remained together at the house of her parents from four to six days; that during this time they slept in the same bed and had matrimonial intercourse.The defendant de la Rama testified that he remained at the house of the plaintiff's parents one day and two nights; that he occupied the same room and slept in a different bed. On being asked by the court as to the length of time he remained with his wife, he stated that he remained there one day and two nights, more or less, and when asked if he slept in the same room but in different bed he answered that he was not sure that there were two beds in the room.This court has not only reversed the judgment of the trial court but has entered a judgment against the plaintiff.It is true that the court may, in the exercise of its appellate jurisdiction, affirms, reverse, or modify any final judgment and may direct the proper judgment to be entered, but where there has been failure of the lower court to make a sufficient finding of fact, or where there are defects or omissions in the pleadings which may be remedied by amendment, or where there is a possibility of supplying defects in the proof, such practice should not be followed.It is stated in the opinion that it is unnecessary to pass upon the question of condonation for two reasons: (1) The court below made no findings of fact on the subject. (2) Even if the court had found that there was condonation, this would not have entitled the plaintiff to a divorce.I have before attempted to answer the last objection. As to the first objection - that is, that the lower court made no findings on the subject - if this be true the case should be reversed in order that a finding be made.To deprive the plaintiff of the judgment which she has obtained and make a final determination of the case here without giving her an opportunity of correcting this error, if such exists, is inequitable and unjust.Footnotes[[1]] Code of Civil Procedure.