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Q. 1955. Since offending parties be jointly charged (if both alive) in adultery, isacquittal possible to one of them?
Yes, in these cases:(1) If one of them may be insane.(2) Man does not know the woman to be married.Note: Death of woman during pendency of the case and if one is not apprehendedthe trial may proceed to the conviction of the remaining parties(US v. de la Torreand Gregorio, 26 Phil. 36; US Topico and Guzman, 35 Phil. 901)
Q. 1956. In 1980, Socorro Wagas, a Filipino citizen and resident of Cebu City, andLoven Adeauer, a West German citizen were married at Sto. RosarioCatholic Church, in Cebu City. In 1983, Loven returned to West Germanywhere he initiated a divorce proceeding, against Socorro before a local courtwhich, in due time, promulgated in July 1985 a decree of divorce on theground of failure of marriage. In September 1985, Loven returned to thePhilippines only to find out that Socorro had filed a case of legal separationagainst him. In December 1985, Loven who learned of the cohabitation of Socorro and Efren Reyes, her childhood sweetheart, when he (Loven) was inGermany, filed a sworn complaint for adultery against Socorro and Efrenwith the Office of the City Fiscal of Cebu. Socorro's counsel moved to dismissthe complaint on the ground that under Art. 344, RPC, the crime of adulterycannot be prosecuted except upon sworn complaint field by the offendedspouse and Loven, having obtained a divorce in Gemany, had ceased to beher offended party. Resolve the motion. BAR Q. 1991).
Motion is impressed with merit because in adultery and concubinage, it is theoffended spouse who should file and nobody else and Loven ceased to such, dueto his favorable divorce in Germany (Pilapil v. Somera, 174 SCRA 653).
Q. 1957. Hand W were newly married. While H was away in a foreign land, X courtedWand they subsequently had successive sexual intercourse. Upon his returnand upon learning of the unfaithfulness of his wife, H filed an adultery casewith the fiscal against Wand X. The fiscal investigation showed beyond doubtthat all the while X did not know that W was a married woman. Hence, thefiscal filed an adultery charge against W only. If you were the fiscal, howwould you justify your action? If you were the lawyer for H, what argumentswould you advance so as to compel the fiscal, X as Co-accused. If you werethe judge, what would be your decision? (BAR Q 1982),
If I were the fiscal, I may justify my resolution on the basis of evidence that theman did not know her to be married and that is exculpatory fact. If I were thelawyer I would advance the argument that both has to be charged, otherwise,court has no jurisdiction to hear the same (US v. Asuncion, 21 Phil. 399).