VOL.

33, MAY 29, 1970

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People vs. Hong Din Chu

No. L-27830. May 29, 1970.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. HONG DIN CHU, defendant-appellee.

Criminal procedure; Prosecution of criminal actions; Defamation; Where defamation consists

in the imputation of crime of prostitution, defamation can be prosecuted de oficio.—Where
the alleged defamatory utterance consisted in the imputation upon the offended party of the
crime of prostitution, which is a public crime that can be prosecuted de oficio, the infor mation
filed under the signature of the fiscal duly conferred jurisdiction upon the court to try the case
without need of the signature of the complainant.

Crimes; Adultery; Distinguished from prostitution.—Prostitution and adultery are not one and
the same thing; the first is a crime against public morals, committed by a woman, whether
married or not, who, for money or profit, habitually indulges in sexual intercourse or lascivious
conduct whereas adultery is in the nature of a private offense committed by a married woman
who shall have sexual intereourse with a man not her husband. In short, the essential element
in prostitution is not simply a woman's entering into marital relations with a man other than
her husband, if she happens to be married, but the existence of pecuniary or financial gain as
inducement to, or consideration for, that woman's engaging in sexual activities. Thus, to call a
married woman a prostitute is not merely to proclaim her an adulteress, a violator of her
marital vows; it is to charge her of having committed an offense against public morals, or moral
degeneracy far exceeding that involved in the maintenance of adulterous relations.

APPEAL from an order of the Court of First Instance of Manila. Bocar,

The facts are stated in the opinion of the Court.

Solicitor General Antonio P. Barredo, Assistant Solicitor General Isidro C. Borromeo and
Solicitor Sumilang Bernardo for plaintiff-appellant.

Jordan Techico, Sr. for defendant-appellee.

REYES, J.B.L., J.:

Appeal from the order of the Court of First Instance of Manila dismissing the complaint in
Criminal Case No, 81257 allegedly for lack of jurisdiction.

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People vs. Hong Din Chu

On 22 January 1966, Hong Din Chu was charged with grave oral defamation before the Court
of First Instance of Manila (Criminal Case No. 81257) in an information reading as follows:
"That on or about the 21st day of November, 1965, in the City of Manila, Philippines, the said
accused, with the malicious purpose of impeaching the virtue, honor, character and reputation
of one Mercedes Japco Ong, did then and there willfully, unlawfully, feloniously and publicly
proffer in the presence of many people against Mercedes Japco Ong the following abusive and
slanderous remarks and expression, to wit: 'Your daughter is a prostitute and she is a prostitute
because you too are a prostitute/ and other words and phrase of similar import which
insinuations and imputations, as the said accused well know, were entirely false and untrue
and without foundation in fact whatsoever, highly offensive and derogatory to her good name,
character and virtue, thereby imputing to the said Mercedes Japco Ong, a married woman of
chaste virtues, good moral character and of high social standing, unchaste acts, loose virtues,
tending to bring said Mercedes Japco Ong into public discredit, disrepute, contempt and
ridicule, as she. was .in fact brought into public discredit, disrepute, contempt and ridicule,

"Contrary to law"

Arraigned on 28 December 1966, the accused pleaded not guilty to the charge. The hearing of
the case was postponed several times, upon representation of counsel for the accused that
serious efforts were being exerted by friends of both parties to effect an amicable settlement
of their differences. On 14 April 1967, the accused moved far the dismissal or quashal of the
information on the ground that, as it charges defamation consisting of the alleged commission
by the complainant of an offense (adultery) that cannot be prosecuted de oficio, the case
should have been initiated at the instance of the latter. The records show that the information
in the case was filed by an assistant city fiscal of Manila without the signature of the supposed
complainant or offended party.

On 8 May 1967, and over the objection of the prosecution, the trial court ordered the dismissal
of the case, as prayed for by the accused; reasoning that under Section 4 of Rule 110 of the
Revised Rules of Court a case for

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defamation involving an off ense that cannot be prosecuted de oficio has to be made out upon
the complaint of the offended party. Since the accused was alleged to have imputed to the
complainant, a married woman, the commission of acts of prostitution, the former, in effect
charged the latter with adultery, and the information, therefore, cannot be filed by the fiscal
without the signature of the supposed offended party.

From this order of dismissal, the prosecution interposed the present appeal, claiming' that the
allegations of the complaint charged the accused of having specifically imputed upon the
offended party the commission of the crime of prostitution, which is a public crime.
Consequently, according to herein appellant, the information, signed and filed by the Assistant
City Fiscal even without the signature of the said offended party, was sufficient to confer
jurisdiction on the trial court.

We incline to agree with this contention of the State.

Under the pertinent legal provisions on the matter (Section 4, Rule 110, Revised Rules of Court,
last paragraph; Article 360, Revised Penal Code, last paragraph),1 no criminal action for
defamation or slander consisting in the imputation of an offense that cannot be prosecuted
de oficio, such as adultery, concubinage, seduction, abduction, rape or acts of lasciviousness,
shall be filed except upon the complaint of the offended party in the slander case.

_______________

1 "SEC. 4. Who must prosecute criminal action.—All criminal actions either commenced by
complaint or by information shall be prosecuted under the direction and control of the f iscal.

xxx xxx xxx

"No criminal action for defamation which consists in the imputation of an offense mentioned
above, shall be brought except at the instance of and upon complaint filed by the offended
party," (Rule 110, Revised Rules of Court)

"ART. 360. Persons responsible—x x x.

"No criminal action for defamation which consists in the imputation of a crime which cannot
be prosecuted de oficio shall be brought except at the instance of and upon complaint
expressly filed by the offended party." (Revised Penal Code.)

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The issue in this proceeding, therefore, hinges on the nature of the act or activity that was
imputed by the accused upon the offended party. Did the alleged defamatory remark imputed
on the offended party constitute the commission of a public crime or of. a private offense that
cannot be prosecuted de oficio?

It must be remembered in this connection that what determines the offense of which the
accused stands charged are the allegations in the information,2 the actual recital of facts made
therein.3 The information in this case averred that the accused, with the malicious purpose of
impeaching the virtue, honor, character and reputation of Mercedes Japco Ong, a married
woman, uttered against the latter, publicly and in the presence of many people, the remarks—
"Your daughter4 is a prostitute and she is a prostitute because you too are a prostitute". As
thus alleged, it is clear that, while the utterance in effect also imputed on her the commission
of adultery, the offended party being a married woman, the disreputable conduct she was
particularly charged with was the crime of prostitution, not adultery. And it may be pointed
out that prostitution and adultery are not one and the same thing; the first is a crime against
public morals, committed by a woman, whether married or not, who, for money or profit,
habitually indulges in sexual intercourse or lascivious conduct,5 whereas adultery is in the
nature of .a private offense committed by a married woman who shall have sexual intercourse
with a man not her husband.6 In short, the essential element in prostitution is not sim-

_______________

2 People vs. Agito, L-12120, 28 April 1958, 103 Phil. 526; Que Po Lay vs. Central Bank, L-11019,
28 Nov. 1958, 104 Phil. 853; People vs. Abesamis, 93 Phil. 712; also People vs. Rodis, L-11670,
30 April 1959; People vs. Defensor, 86 Phil. 591.

3 People vs. Cosare, 95 Phil. 656.

4 The daughter of the offended party referred to is the daughter-in-law of the accused.

5 Article 202, Revised Penal Code.

6 Article 333, id.

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ply a woman's entering into marital relations with a man other than her husband, if she
happens to be married, but the existence of pecuniary or financial gain as inducement to, or
consideration for, that woman's engaging in sexual activities. Thus, to call a married woman a
prostitute is not merely to proclaim her an adulteress, a violator of her marital vows; it is to
charge her of having committed an offense against public morals, of moral degeneracy far
exceeding that involved in the maintenance of adulterous relations.

It appearing from the recital of the information that the alleged defamatory remark by the
accused specifically imputed upon the offended party the commission of prostitution, which
is a public crime that can be prosecuted de oficio, the information filed under the signature of
the Assistant City Fiscal duly conferred jurisdiction upon the lower court to try the case.7

WHEREFORE, the appealed order of dismissal is hereby set aside, and the case is remanded to
the trial court for further proceedings. No costs.

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Castro, Fernando, Teehankee and Villamor, JJ.,
concur.

Barredo, J., did not take part.

Order of dismissal set aside, case remanded to the trial court for further proceedings.

____________

ANNOTATION
ADULTERY

Meaning of adultery.—Voluntary sexual intercourse of a married person with a person other

than the offender's husband or wife. (Franzetti v. Franzetti, Tex. Civ. App. 120 S.W. 2d 123,
127) Black's Law Dictionary, Revised Fourth Edition. Adultery is committed by any married
woman who shall have sexual intercourse with a man not

_______________

7 People vs. Santos, et al., 98 Phil. III.

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her husband and by the man who has carnal knowledge of her, knowing her to be married,
even if the marriage be subsequently declared void. Art. 333, Revised Penal Code.

Elements of adultery.—There are two elements of adultery: the woman must be married, and
the carnal relation with a man not her husband must exist. If either of these is not present a
conviction of either party is impossible. But note that another element is necessary to convict
the man. Mere carnal relations with a married woman is not adultery as to the man whether
he is married or single. The man must know that the woman is married. A married man may
sustain relations with an unmarried woman and be guilty of no crime so long as he does not
commit concubinage. Groizard says that to the legislators adultery is not a violation of the laws
relating to marriage. It is a violation of those laws only when committed by a woman. The
husband can break those laws without committing adultery. The husband may live with a
woman not his wife without committing adultery. Not so the wife. When she lies with a man
not her husband, she is guilty of adultery. Aquino, Revised Penal Code, 1961 Edition citing the
dissent of Justice Moreland in People vs. Topino and Guzman, 35 Phil. 901, 916.

By a married woman.—In order that a woman may be held guilty of the crime of adultery she
must be legally married with the offended party. The legitimacy of the marriage relation
between the offended party and the defendant is one of the circumstances which must
necessarily attend the crime of adultery. (U.S. vs. Villafuerte, 4 Phil. 476). In U.S. vs. Mata, 18
Phil. 490, the wife e of the offended party was not held guilty of adultery they being not legally
married. This is notwithstanding the fact that the couple have been living as husband and wife
for so many years, have several children and are considered by the community .as married.
However, although no marriage certificate was introduced in the evidence to establish the
marital relations between

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the off-ended party and the defendant, yet if both parties have been living together and have
been known husband and wife, the presumption, no proof of the contrary having been
adduced, is that they were legally united by the bonds of marriage. People vs. Villafuerte,
supra. In the case of U.S. vs. Mata, supra, it was held that a married woman may be convicted
of adultery even if the marriage be subsequently declared void.
The clear import of law and jurisprudence therefore, is that a marriage may be annulled even
after one of the spouses has been convicted of adultery in violation of that marriage. Paulino
vs. Cruz, CA-G.R. No. 25029-R, Dec. 27, 1963.

Proof of marriage.—The best proof of the marriage is, of course, the marriage certificate. But
'this is not the only proof; The declaration of one of the parties to the marriage as well as of
persons who were present at its celebration, are competent proof of the marriage (People vs.
Alday, 59 O.G. 411). The marriage will be presumed to be valid and regular and will not be set
aside on the inability of the priest who solemnized the marriage and one of the parties to
remember what was said during the ceremony, especially if this was followed by long
cohabitation. (People vs. Cosas, O.G., Oct.11, 1941, p. 3154.) However, although no marriage
certificate was. introduced in evidence to establish the marital relations between the offended
party and the defendant, yet if both parties have been living together and have been known
as husband and wife, the presumption, no proof of the contrary having been adduced, is that
they were legally united by the bonds of matrimony. U.S. vs. Real, 46 O.G. 2610; U.S. vs.
Villafuerte, supra.

Adultery is not continuing offense; Abuse of unity or criminal intent or purpose.—The notion
or concept of a continuous crime has its origin in the juridical fiction favorable to the law
transgressors and in many a case against the interest of society (Cuello Calon, Derecho Penal,
Vol. II. p, 521). For it to exist there should be

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plurality of acts performed separately during a period of time; unity of penal provision
infringed upon or violated; and unity of criminal intent or purpose, which means that two or
more violations of the same penal provision are united in one and the same intent leading to
the perpetration of the same criminal purpose or aim (Ibid., p. 520). ln adultery, the last unity
does not exist because the culprits perpetrate the crime in every sexual intercourse and they
need not do another or other adulterous acts to consummate it. People vs. Zapata and Bondoc,
88 Phil. 688. Conviction for one act does not bar prosecution for other adulterous acts.

Each sexual intercourse a crime.—Adultery is a crime of result and not of tendency, as the
Supreme Court has held (S. 10 December 1945); it is an instantaneous crime which is
consummated and exhausted or completed at the moment of the carnal union. (Cuello Calon,
Derecho Penal, Vol. II, p. 569). Ibid.

Jeopardy rule, not violated; Reason.—A second complaint charging the commission of
adulterous acts not included in the first complaint does not constitute a violation of the double
jeopardy clause of the Constitution, otherwise the adultery committed by the male defendant
charged in the second complaint, should he be absolved from, or acquitted of, the first charge
upon the evidence that he did not know that his codefendant was a married woman, would
remain or go unpunished. The defense set up by him against the first charge upon which he
was acquitted would no longer be available, because at the time of the commission of the
crime charged in the second complaint, he already knew that his codefendant was a married
woman and yet he continued to have carnal knowledge of her. People vs. Zapata and Bondoc,
supra.

Law does not bar filing of as many complaints as there are adulterous acts.—True, two or more
adulterous acts committed by the same defendants are against the same person—the
offended husband, the same status—the union of the husband and wife by their marriage, and

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the same community represented by the State for its interest in maintaining and preserving
such status. But this identity of the offended party, status and society does not argue against
the commission of the crime of adultery as many times as there were carnal acts
consummated, f or as long as the status remains unchanged, the nexus undissolved and
unbroken, an encroachment or trespass upon that status constitutes a crime. There is no
constitutional or legal provision which bars the filing of as many complaints for adultery as
there were adulterous acts committed, each constituting one crime. People vs. Zapata and
Bondoc, supra.

Adultery is often proved by circumstantial evidence.—The nature of the crime of adultery is

such that it will not be often when it can be established by direct evidence. Nevertheless,
strong circumstantial and corroborative evidence such as will lead the guarded discretion of a
reasonable and just man to the conclusion that the alleged act has been committed is sufficient
to sustain a conviction for adultery. (Groizard, Codigo Penal, p. 24, et seq.; Decision of the
Supreme Court of Spain of June 23, 1874; 1 R.C.L., par. 28) In the case of U.S. vs. Feliciano, 36
Phil. 753, a photograph was introduced in evidence showing the intimate relations of the two
accused. Another witness testified to having seen them in scant apparel and sleeping together.
The woman and her paramour had 'the opportunity to satisfy their adulterous inclination. A
finding to the effect that they had carnal relations is sufficiently in accord with the probabilities
of the case and the proof.

In U.S. vs. Legaspi, 14 Phil. 38, it was held that the f inding in the possession of a married
woman of several love letters signed by her paramour; their having been together in different
places and the fact that they were surprised in a well known assignation house which the
accused woman admitted to have visited six times in company with her paramour are data and
indications sufficient to convict them both of adultery.

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People vs. Hong Din Chu

In another case, People vs. Osorio, CA-G.R. No. 19475-K, June 12, 1958, the offended husband
took a search warrant and he searched the house where his wife and her paramour were
staying and found them partially disrobed in one bed, the bed showing signs of having been
used, while their clothes were mixed together, these circumstances indicate adultery (U.S. vs.
Legaspi, supra).

Direct proof of carnal knowledge not necessary.—Direct proof of carnal knowledge is not
necessary to sustain a conviction for adultery. In the very nature of things, it is seldom that
adultery can be established by direct evidence. The legal tenet, therefore, has been and still is
that circumstantial and corroborative evidence such as will lead the guarded discretion of a
reasonable and just man to ,'the conclusion that the criminal act of adultery has been
committed, will suffice to bring about a conviction f or that crime. Where defendants, lived
together as husband and wife in different places, at diverse times and for certain periods and
actually were seen lying together at late' hours to the night in their underwear and caressing
and embracing each other, these facts more than suffi-ciently prove the crime of adultery.
(U.S; vs. Legaspi, 14 Phil. 38; U.S. vs. Feliciano, 36 Phil. 753; People vs. Fernando, CA-G.R. No.
L-7148-R, promulgated February 15, 1952.) People vs. Dantes, Off. Gaz., Vol. 51, No. 2, Feb.
1955, p. 801.

Circumstantial evidence; Factual situation and circumstances, not absolutely incompatible

with innocence of accused.—True that the proof of the illicit intercourse may safely be rested
on circumstantial evidence, but the factual situation in a case and the circumstances relied
upon by the prosecution are not absolutely incompatible with the innocence of the accused
and not incapable of explanation other than of their guilt. The fact that the accused met each
other once in a while is explained by the existing relation between them, that is, accused man
has been the repairer of the defective sewing machines of the spouses and their agent on com-

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People vs. Hong Din Chu

mission in the sale of machines he could repair because since 1946, accused woman, with the
consent of her husband, has been engaged in buying defective sewing machines and selling
them after their repair at a gain. People -vs. Malasig and Retotal, CA-G.R. No. 4666-R, April 29,
1950.

Adultery seldom committed where easily seen by public.—The illicit relations are seldom
carried out in the barrios in broad daylight. Even assuming that forbidden lovers can muster
enough courage to perform the sexual act during the day, they would not certainly expose the
act to the prying eyes of the public in such reckless and wanton manner. They would not do
the act in a place where their legs could be seen from the outside. As illicit relations are in the
nature of stolen moments of bliss, the perpetrators would surely seek the sanctuary of the
night and conceal their acts by the mantle of darkness or they would not indulge in the acts
save in an atmosphere of utmost secrecy and landestines. People vs. Gonzalo, CA-G.R. No,
21253-R, April 18, 1959.

Adultery cannot be proved by conjectures.—With respect to the acts allegedly committed by

the plaintiff after the marriage, the inference sought to be deduced therefrom is hardly
justifiable. To say that the plaintiff committed adultery because she left the conjugal abode
and came back to ask for money from the defendant, is to indulge in conjecture. It is not kind
to call a woman an adulteress, and where the imputation is grounded on nothing except
conjectures, the same cannot be sustained. Laririt vs. Laririt, CA-G.R. No. 21356-R, April 11,
1960.

Story of accused of surprising his wife committing adultery, not believed by court.—If as the
accused said, upon entering the sala of his house he surprised the accused man on top of his
wife in the act of carnal intercourse and that he immediately struck him with a bolo, it is
difficult to believe that the supposed adulterer could have escaped unhurt. Moreover, the fact
that after killing: his wife the accused fled and hid him-

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self instead of denouncing the supposed adulterer, and the further fact that he resisted arrest
and had to be subdued by force, are not compatible with his innocence. People vs. De los
Santos, 47 O.G. 5131, 85 Phil. 870.

Ordinary and privileged mitigating circumstances; Penalty.—Although the female accused was
not abandoned by her husband in a way that would constitute the mitigating circumstance
provided for in Art, 333 of the Revised Penal Code in her favor, for in fact he left her in response
to a duty which could not be avoided, yet she was left helpless and in such a great need that
she found herself in the predicament of admitting the wrong which she had found guilty for
the sake of her three children and other dependents, and should we add to this condition her
being in good faith that her husband died according to reliable information, her responsibility
of giving herself up to the man who had lent her a helping hand during such time of want and
need should be considered mitigated two-fold by sheer necessity and by her belief in good
faith that the man to whom she owed faithfulness was no more, one ordinary and the other
privileged. The existence of the two mitigating circumstances, one being privileged, brings the
penalty one degree lower to its minimum period. People vs. Alberto and Regala, CA-G.R. No.
2196-R, May 11, 1946.

Aggravating circumstances of dwelling considered in adultery.—The fact that the house is also
the dwelling of the other accused is of no moment, because besides the breach of fidelity she
owed her husband, her co-accused also violated the respect due the conjugal home. People
vs. Malabanan, CA-G.R. No. 21494-R, June 30, 1960. In adultery, the supposed illicit
relationship of the offended party with another woman serves, at most? as a mitigating
circumstance, but not to exculpate appellants' crime.—People vs. Flores, CA-GR. No. 26089-R,
April 6, 1964.

Adultery as ground in legal separation.—Legal separation can be granted only on the ground
of adultery of the
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wife, or concubinage on the part of the husband, committed as provided in articles 333 and
334 of the Revised Penal Code. It is not mere sexual infidelity that constitutes the ground for
legal separation. Such infidelity must constitute adultery or concubinage as defined by the
Revised Penal Code.

The act of a wife in having sexual intercourse with any other man not her husband will
constitute adultery. But the act of a husband in having sexual intereourse with a woman other
than his wife will not always constitute concubinage. The latter crime is committed only in
three ways; (1) maintaining a mistress in the conjugal dwelling; (2) sexual intercourse with the
other woman under scandalous circumstances; and (3) cohabiting with her in any other place.
Since "cohabit" has, for purposes of concubinage, been held to mean to dwell or live together
in the same house, as husband and wife. it is clear that mere sexual Intercourse performed
during secret trysts, without scandalous circumstances, will not constitute concubinage.
People vs. Picoc, 43 Phil. 758,

Scandalous circumstances in concubinage mean "any reprehensible word or deed that offends
public conscience, redounds to the detriment of the feelings of honest persons, and gives
occasion to the neighbors' spiritual damage or ruin. Scandal is 'the effect that the knowledge
of facts causes upon the sense of decorum and temperance inherent to persons of culture".
(People vs. Santos and Veredejo, 45 O.G. No. 5, p. 2116). An act to be called scandalous must
give rise to criticism and general protest among the neighbors or it must set and produce a
bad example. The act must be so impudent and wanton as to offend the modesty and that
innate sense of morality and decency of the people in the neighborhood.
Legal separation; Existence of evidence of adultery independently of confession.—Where
there is evidence of the adultery independently of the defendant's statement agreeing to the
legal separation, the decree of separation should

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be granted, since it would not be based on the confession but upon the evidence presented
by the plaintiff. What the law prohibits is a judgment based exclusively on the defendant's
confession. Ocampo vs. Florenciano, 107 Phil. 35.

Unjustified abandonment by husband is not d valid defense in crime of adultery.—Unjustified

abandonment by the husband, cannot be a valid defense, At most it only have the effect of
lowering the penalty (People vs. Avelino, 40 O.G. Supp. 11, 194; Francisco of 3 Revised Penal
Code, 1287).

In U.S. vs. Serrano, 23 Phil 230, it was held that the fact that the husband abandoned his wife
and left her in poverty without means of obtaining a livelihood does not justify her nor free
her from the criminal responsibility she incurred by breach of the fidelity she owed her
husband, f or she has means within the law to compel him to fulfill the duties imposed upon
him by marriage.
Condonation or forgiveness.—Condonation is a pardon, given after the commission of the
offense, either expressly or impliedly, by the injured party with the condition that the offense
be not repeated (Veezer, Marriage and Divorce, p. 553). It is express when signified by words
or writing, and it is implied when it may be inferred from the acts of the injured party. A mere
offer of reconciliation by the wronged spouse may constitute condonation. Shirly vs. Shirly, 87
Ark. 175; 112 S.W. 369; Runkle vs. Runkle, 96 Mich. 493, 56 N.W. 2.

Condonation as a defense.—Condonation is the forgiveness of a marital offense constituting a

ground for divorce and bars the right to a divorce. (Madden, Persons and Domestic Relations,
p. 300).

The act of giving money to an erring wife and the fact that DO action was taken against her
before the courts of justice are sufficient to establish forgiveness amount-

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ing to condonation, for "condonation is the forgiveness of one of the married parties of an
offense which he knows the other has committed against the other," (Words and Phrases, 8A,
pp. 19-20). At any rate, pardon or condonation does not require sexual intercourse and it may
be expressed or implied. Almacen vs. Teodoro, supra.

Condonation deprives offended spouse of action for legal separation.—Granting that the
infidelities amounting to adultery were committed by the wife, the act of the husband in
persuading her to come along with him, and the fact that she went with him and together they
slept as husband and wife, deprives him, as the alleged offended spouse, of any action for legal
separation against the offending wife, because his said conduct comes within the restriction
of Article 100 of the Civil Code. Bugayong vs. Ginez, 100 Phil. 616,

Extent of condonation.—Any cohabitation with the guilty party, after the commission of the
offense, and with the knowledge or belief on the part of the injured party of its commission,
will amount to conclusive evidence of condonation; but this presumption may be rebutted by
evidence (60 L. J. Prob. 73). Ibid.

Failure of husband to search for erring wife.—ln one case the wife left her husband after the
latter discovered her dates with other man. Held: The failure of the husband actively to search
for his wife and take her home does not constitute condonation or consent to the adultery. It
was not his duty to search for her. Ocampo vs. Florenciano, 107 Phil. 36.

Subsequent commission of adultery.—Even if the husband should pardon his adulterous wife,
such pardon would not exempt the wife e and her paramour f rom criminal liability for
adulterous acts committed after the pardon was granted, because the pardon refers to
previous, and not subsequent adulterous acts (Viada, 5th ed., Vol. 5, p. 208; Groizard, and ed.,
Vol. 5, pp. 57-58). People vs. Zapata and Bondoc, supra.

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It is, of course, correct that pardon refers to previous, and not to subsequent adulterous acts
consummated after the filing of the complaint; and that adultery is a crime of result and not
of tendency, each sexual intercourse constituting a crime of adultery (People vs. Kaptas, et al.,
53 O.G. 7683). But, in the case, there was no pardon, or consent on the part of the offended
husband, and the defendants-appellants were charged with and convicted for acts committed
"in and prior to June, 1956, until the present", as alleged in the complaint Hence, the reference
to the continued illicit relations even after the filing of the complaint on January 20, 1966, may
be considered merely as reinforcement of the finding that the defendantsappellants were
guilty beyond reasonable doubt of adultery as charged in the information. People vs. Acopiado,
CA-G.R. No. 22807-R, Sept 13, 1962; 59 O.G. 3025.

Consent or pardon; Consent required.—Acts of consent or pardon, should be established by

unequivocal evidence, and mere lapse of time, which is satisfactorily explained. is not
sufficient. People vs. Llagas, et al., 40 O.G. No. 5, 990; Goli vs. Sahagun, et al., 2 Phil. 425;
Mortiga vs. Serra, et al, 5 Phil 35.

When separate trial may be conducted against one of the accused in an adultery case.—It is
now well-settled in this jurisdiction that while the husband cannot institute a prosecution for
the crime of adultery without including therein both of the guilty parties if they are both living
the statute does not require that both must necessarily be tried together. When the complaint
is filed by the offended husband against both of the guilty parties, the proceedings then pass
into the hands of the prosecuting officer, who may move for dismissal of the complaint as to
the paramour if he is certain that he cannot establish guilty knowledge on the part of the man
of the fact that the woman was married, and such dismissal would not of itself require the
Court to acquit the woman. Nor would the death of the woman during the pendency of the
action

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defeat the trial and conviction of the man. (U.S. vs. De la Torre and Gregorio, 25 Phil. 36).
Neither would the fact that the man had left the country and could not be apprehended defeat
the trial and conviction of the woman. And if both are brought before the Court to be tried
jointly and one of them claims a separate trial, which the Court would have to grant (Sec. 33,
General Orders No. 58), the acquittal of one would not necessarily bar the prosecution and
conviction of the other. U.S. vs. Topiño and Guzman, 36 Phil. 901, 910.

And in a later case, it was stated that "there are numerous cases, after the complaint has been
properly presented, where one of the other of the alleged guilty parties in a criminal action for
adultery may be tried and sentenced separate from the co-defendant. For example, where one
of the parties died after the commencement of the action, or where the man was ignorant of
the fact that the woman was married at the time of the com-mission of the alleged criminal
act." (U.S. vs. Gallegos, 37 Phil. 289, 292). And, so, the Supreme Court declared that the lower
court in that case did not commit an error in requiring the paramour to proceed to trial alone
in the absence of his co-defendant.

It is then clear that a defendant in an adultery case may be tried alone or separately from his
co-defendant if the prosecution and the party available are ready for it The only difference
between the old rule (Section 33. General Orders No. 58, as amended) and the present (Section
8, Rule 115, Rules of Court) is that under the old law, a separate trial can be demanded by a
co-defendant as of right and the Court had no authority to deny the petition. (U.S. vs. Remigio,
36 Phil. 719), while under the present rule it is discretionary upon the trial court to order a
separate trial. People vs. Oplado, No. L-20146, Sept. 30, 1964.

Admissibility of confession made outside of court.—Article 101 of the new Civil Code does not
exclude, as evidence, any admission or confession made by the defendant

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People vs. Hong Din Chu

outside of the court. Ocampo vs. Florenciano, 107 Phil. 36.

Collusions may not be inferred from confession.—Collusion may not be inferred from the mere
fact that the guilty party confesses to the offense of adultery, desires the divorce and makes
no defense. Ibid.

Delay in filing complaint.—Delay in filing a complaint for adultery or concubinage does not
imply consent or acquiescence in the illicit relation, if there are good reasons for the delay.
People vs. Real, CA-G.R. No. 2240-R, Sept 21, 1948.

Where husband and wife are in delicto.—One of the causes for legal separation is "adultery on
the part of the wife and concubinage on the part of the husband." (Article 87), as defined in
the Penal Code. If If the plaintiff was the only one who committed adultery, defendant's theory
would be correct. In the instant case defendant is still bound to support his wife because: (1)
plaintiff and defendant were guilty of infidelity, but before the filing of the action defendant
had pardoned plain'tiffs unfaithfulness; (2) the law on support (Title IX, Book I, Articles 290-
804, Civil Code) contains no provision squarely applicable to the present case in which both
parties had committed infidelity; neither is there a provision to the effect that when both
spouses committed marital offenses against one another, one can no longer ask support from
the other; and (3) there is the general principle that when two persons acted in bad faith, they
should be considered as having acted in good faith, which principle may be applied to the
present case to the effect that plaintiff and defendant being in pari delicto, the latter cannot
claim the adultery of the former as defense to evade the obligation to give her support.
Almacen vs. Teodoro, 103 Phil. 1147.

In the old Civil Code, adulterous child cannot inherit.

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According to the Civil Code, only natural children legally acknowledged are entitled to inherit
in the estate of their natural parents (Arts. 840-847, old Civil Code). Lagrazon vs. Parago and
Vidal, CA-G.R. No. 18123-R, Aug. 15, 1960.

Adulterous children entitled to support only.—It being an uncontroverted fact that the
plaintiffs are the illegitimate adulterous children of the deceased, it stands to reason that
notwithstanding what the testator may have believed when he made his will, and the terms
and words used by him in considering them as his natural recognized children, these plaintiffs
are not the natural but the adulterous children of the testator since they were begotten with
PC while his legal marriage with DR was still subsisting, and they could not be legitimated (Civil
Code, Arts. 119 and 129). They are, therefore, illegitimate children entitled to support only
because they do not have the status of natural children (Civil Code, Art. 845; Ra-mirez vs.
Gmur, 42 Phil. 855). Osorio vs. Osorio, CA-G.R. No. 746-R, Jan. 9, 1948.

Parent and child; Legitimate children; Presumption.—Husband died on January 1, 1943. The
boy whose legitimacy in question was born on June 17, 1943. Held: That boy is presumed to
be the legitimate son of said husband and his wife, he having been born within three hundred
days following the dissolution of the marriage. That presumption can only be rebutted by proof
that it was physically impossible for the husband to have had access to his wife during the first
120 days of the 300 next preceding the birth of the child. The fact that the wife has committed
adultery cannot overcome this presumption. Andal and Dueñas vs. Macaraig, 89 Phil. 165.

Penalty for adultery.—The penalty for adultery is prisión correccional in its medium and
maximum periods. (Art. 333, Penal Code)—ATTY. ANGEL T. ADRIANO

Notes.—(a) Jurisdiction, basis of determining.—Juris-

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Espe vs. Central Cooperative Exchange, Inc.

diction of courts in criminal cases is determined by the allegations of the complaint or

information, not by the findings of the court after trial (People vs. Mission, L-3488, Nov. 28,
1950, 48 O.G. 1330).

(b) Defamation imputing prostitution is. an offense which may be prosecuted de officio.—
Same ruling in Mangila vs. Lantin, L-24735; Oct. 31, 1960. People vs. Hong Din Chu, 33 SCRA
199, No. L-27830 May 29, 1970