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DECISION
PEREZ, J.:
Before leaving, Rosa took up the matter again with Alfredo, who
remained opposed to her working abroad. Furious with Rosa’s
pressing, Alfredo took his loaded gun and pointed it at Rosa’s right
temple, threatening and taunting Rosa to attempt to leave him and
their family. Alfredo was only staved off because Rosa’s mother
arrived at the couple’s house. Alfredo left the house in a rage: Rosa
and her mother heard gun shots fired outside.
Because of that incident, Rosa acted up to her plan and left for the
US. While in the US, Rosa became homesick and was subsequently
joined by her children who were brought to the US by Alfredo. Rosa
singularly reared them: Alfred, from grade school to university,
while Robert, upon finishing high school, went back to Davao City
to study medicine and lived with Alfredo.
During that time his entire family was in the US, Alfredo never sent
financial support. In fact, it was Rosa who would remit money to
Alfredo from time to time, believing that Alfredo had stopped
womanizing. Rosa continued to spend her annual vacation in Davao
City.
Sometime in 1997, Rosa learned that a certain Emy Sia (Sia) was
living at their conjugal home. When Rosa asked Alfredo, the latter
explained that Sia was a nurse working at the Regional Hospital in
Tagum who was in a sorry plight as she was allegedly being raped
by Rosa’s brother-in-law. To get her out of the situation, Alfredo
allowed Sia to live in their house and sleep in the maids’ quarters.
At that time, Rosa gave Alfredo the benefit of the doubt.
5. The relationship between Alfredo and Sia ended only when the
latter found another boyfriend. 6. His father next took up an affair
with Julie de Leon (de Leon) whom Robert met when de Leon
fetched Alfredo on one occasion when their vehicle broke down in
the middle of the road.
1. They had seen Sia sleep and stay overnight with Alfredo in the
conjugal bedroom.
2. Sia herself, who called Alfredo "Papa," confirmed the two’s sexual
relationship.
As a result, Rosa and their other son Alfred forthwith flew to Davao
City without informing Alfredo of their impending return. Upon
Rosa’s return, she gathered and consolidated information on her
husband’s sexual affairs.
1. Rosa, despite his pleas for them to remain and raise their family
in the Philippines, chose to live in the US, separate from him.
6. As regards the dates of December 23, 24, 30 and 31, 2004 when
he supposedly stayed with de Leon in the conjugal room, Alfredo
pointed out that said dates were busiest days of the year in the
hospital where his presence as Chief of Hospital is most required.
Before dwelling into the merits of the case, this Office finds an
urgent need to resolve the ancillary issues raised by petitioner Dr.
Busuego on: 1.) the alleged legal infirmity of Rosas’s initiatory
pleading by resorting to a procedural short cut which would result
to the delay in the disposition of this case; and 2.) the criminal
charges imputed are not in relation to office, hence, the Office of the
Provincial/City Prosecutor shall investigate and prosecute this case
pursuant to OMB-DOJ Joint Circular No. 95-001, Series of 1995.
On the first issue, this Office observed that Busuego had already
pointed out in his counter-Affidavit the alleged deficiency in the
complaint. Rosa also explained in her Reply that the names of the
mistresses were categorically mentioned in the complaint. She
averred that this Office is empowered to investigate and prosecute
any act or omission of a public official or employee to the exclusion
of non-government employees. She stated that the inclusion of the
alleged concubines in the Information to be filed in court is a matter
of procedure, within the competence of the investigating prosecutor.
In order to clarify some matters, including the said issue, with the
parties, the clarificatory hearing was conducted. It was explained in
the said hearing the need to implead the alleged concubines in this
case pursuant to Article 344 of the Revised Penal Code and to
obviate the proceedings, Rosa was directed to submit the addresses
of the alleged concubines. Busuego’s position that the said short
cut procedure would delay the proceedings is misplaced. If the case
will be dismissed based on procedural infirmity, Rosa could still
amend her complaint and re-file this case since the doctrine of res
judicata does not apply in the preliminary investigation stage of the
proceedings.
On the second issue, the motion of Busuego to refer this case to the
Office of the City Prosecutor was belatedly filed. Record would show
that the motion praying for the referral of this case to the Office of
the City Prosecutor was filed on 17 July 2008, after the parties have
already filed all their pleadings and the case is now ripe for
resolution. Further, referral to the said office is not mandatory as
cited in the said Joint Circular.7
We do not agree.
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xxxx
Section 4. Procedure – The preliminary investigation of cases falling
under the jurisdiction of the Sandiganbayan and Regional Trial
Courts shall be conducted in the manner prescribed in Section 3,
Rule 112 of the Rules of Court, subject to the following provisions:
a) x x x
f) If, after the filing of the requisite affidavits and their supporting
evidences, there are facts material to the case which the
investigating officer may need to be clarified on, he may conduct a
clarificatory hearing during which the parties shall be afforded the
opportunity to be present but without the right to examine or cross-
examine the witness being questioned. Where the appearance of the
parties or witnesses is impracticable, the clarificatory questioning
may be conducted in writing, whereby the questions desired to be
asked by the investigating officer or a party shall be reduced into
writing and served on the witness concerned who shall be required
to answer the same in writing and under oath.
In order to clarify some matters, including the said issue, with the
parties, the clarificatory hearing was conducted. It was explained in
the said hearing the need to implead the alleged concubines in this
case pursuant to Article 344 of the Revised Penal Code and to
obviate the proceedings, Rosa was directed to submit the addresses
of the alleged concubines. Busuego’s position that the said short
cut procedure would delay the proceedings is misplaced. If the case
will be dismissed based on procedural infirmity, Rosa could still
amend her complaint and re-file this case since the doctrine of res
judicata does not apply in the preliminary investigation stage of the
proceedings.14
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(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial
Courts;
Within five (5) days from his resolution, he shall forward the record
of the case to the provincial or city prosecutor or chief state
prosecutor, or to the Ombudsman or his deputy in cases of offenses
cognizable by the Sandiganbayan in the exercise of its original
jurisdiction. They shall act on the resolution within ten (10) days
from their receipt thereof and shall immediately inform the parties
of such action.
xxxx
xxxx
Article 334 of the Revised Penal Code lists three (3) specific acts of
concubinage by a husband:
The Ombudsman found a prima facie case against Alfredo and Sia
based on the testimony of Robert, Melissa S. Diambangan and Liza
S. Diambangan that Alfredo had kept Sia in the conjugal dwelling
where Sia even stayed at the conjugal room. We completely agree
with the Ombudsman’s disquisition:
The story of Robert in his Affidavit was reinforced by the two house
helpers Melissa S. Diambangan and Liza S. Diambangan, who were
employed by the family. Melissa was with the Busuego family in
their conjugal home in 1997. She left the family in 2005 but
returned in 2006.1âwphi1 Liza started working with the family in
2002. Melissa revealed that it was Emy Sia who recruited her to
work with the Busuego family. They both attested to the fact that
Alfredo and Emy Sia slept together in the bedroom of Alfredo but
Emy Sia would sleep in the maid’s quarter when Rosa and Alfred
came home for a visit in 1997. They recalled that Emy Sia calls
Alfredo "papa". They narrated that Emy Sia would even confide to
them some private matters relating to her sexual proclivities with
Alfredo.23
SO ORDERED.
OLD CASES:
EN BANC
Topic: Meaning of cohabitation
G.R. No. 18513 September 18, 1922
STATEMENT
February 21, 1921, the defendant, Pedro Pitoc, was legally married
to Petronila Roque in the city of Manila. For several years prior to
their marriage, the defendant, Pedro Pitoc, had sustained illicit
relations with Marcians del Basco. In a short time after the
marriage, the defendant, Pedro Pitoc, and his wife left the city of
Manila and went to Calumpit, Bulacan, to reside. Later Pedro Pitoc
returned to Manila, leaving his wife at Calumpit, promising to
return March 15, 1921. For his failure to return on March 17,
1921, his wife came to Manila to look for him, and later with Angel
Roque verified the following complaint against her husband and his
paramour:
That on or about the 23d day of June, 1921, and for some time
prior to this date, in the city of Manila, Philippine Islands, the said
accused, Pedro Pitoc, being legally married to the undersigned,
Petronila Roque, voluntarily, illegally and criminally cohabited, lied
and had sexual intercourse with his coaccused, Marciana del
Basco, who voluntarily, illegally and criminally cohabited, lied and
had sexual intercourse with the said Pedro Pitoc, knowing that her
coaccused was legally united by marriage with the complaint
referred to.
Contrary to law.
They were both found guilty as charged. Pedro Pitoc was sentenced
to one year, eight months and twenty-one days of prision
correccional with the accessory penalties provided by law, and to
pay one-half of the costs, from which he appeals, claiming that the
evidence was not sufficient to prove him guilty of the crime of
concubinage, beyond a reasonable doubt, and that there was no
evidence that the crime was committed "under scandalous
circumstances." His codefendant did not appeal.
JOHNS, J.:
"For the purposes of the law establishing divorce, the husband who,
not being included in the preceding cases, cohabits with a woman
who is not his wife, shall be considered guilty of concubinage and
shall be punished with the penalty prescribed in this section for the
crime of concubinage."
Although the words used in the amendment "for the purposes of the
law establishing divorce" are intended to be explanatory, they are
not words of limitation, and are more or less surplusage. That is to
say, if a husband cohabits with a woman who is not his wife, he is
guilty of the crime of concubinage, regardless of whether show
wants a divorce or not. The crime is not contingent upon anything
the wife may do or may not do. The crime consists in the
commission of anyone of the three specified grounds, neither of
which is dependent upon the purpose or intent of the wife to obtain
a divorce.
This evidence was not denied by the defendant, Pedro Pitoc. When
this is considered with the defendant's conduct and all the other
evidence, surrounding facts and circumstances, the proof is
conclusive that the defendant, Pedro Pitoc, did cohabit "with a
woman who is not his wife," and that he is guilty of the crime
charged.
EN BANC
Topic: Pardon in Concubinage
G.R. No. L-48183 November 10, 1941
MORAN, J.:
Upon the other hand, we believe and so hold that the accused
should be acquitted of the crime of concubinage. The document
executed by and between the accused and the complaint in which
they agreed to be "en completa libertad de accion en cualquier acto
y en todos conceptos," while illegal for the purpose for which it was
executed, constitutes nevertheless a valid consent to the act of
concubinage within the meaning of section 344 of the Revised Penal
Code. There can be no doubt that by such agreement, each party
clearly intended to forego to illicit acts of the other.
We said before (People vs. Guinucod, 58 Phil., 621) that the consent
which bars the offended party from instituting a criminal
prosecution in cases of adultery, concubinage, seduction,
abduction, rape and acts of lasciviousness is that which has been
given expressly or impliedly after the crime has been committed. We
are now convinced that this is a narrow view in way warranted by
the language, as well as the manifest policy, of the law. The second
paragraph of article 344 of the Revised Penal Code provides:
MORAN, J.:
We are here concerned only with the third way of committing the
offense under which petitioner was convicted. The term "cohabit"
means to dwell together, in the manner of husband and wife, for
some period of time, as distinguished from occasional, transient
interviews for unlawful intercourse. (People vs. Pitoc, 43 Phil., 758.)
And, whether an association, for illicit intercourse, has been such
as to constitute an unlawful assumption of the conjugal relation, is,
in every case a question of fact (74 A. L. R., 1363), and the extent of
such association as to constitute a cohabitation within the meaning
of the law, is a matter of court's appreciation.
In the instant case, petitioner's conduct with his coaccused was not
confined to isolated interviews for unlawful intercourse. He and his
coaccused dwelt together as husband and wife in the same house in
Naga, Camarines Sur, where they were seen attending shows and
dances; again, in Tiwi, Albay, they dwelt together as husband and
wife in the same house for seven days and nights where they slept
together and alone in one room. We are of the opinion and so hold
that such association is sufficient to constitute a cohabitation
within the meaning of the law even disregarding proofs of actual
sexual intercourse.
RESOLUTION
CORTES, J.:
The circumstances of the present case are very different from Tijam
v. Sibonghanoy No judgment has yet been rendered by the trial
court in this case. And as soon as the accused discovered the
jurisdictional defect, they did not fail or neglect to file the
appropriate motion to dismiss. Hence, finding the pivotal element of
laches to be absent, the Court holds that the ruling in Tijam v.
Sibonghanoy, Vera v. People and People v. Munar does not control
the present controversy. Instead, the general rule that the question
of jurisdiction of a court may be raised at any stage of the
proceedings, must apply. Private respondents are not estopped from
questioning the jurisdiction of the trial court.
Having disposed of the procedural issue, the Court will now proceed
with the main issue of whether or not the Regional Trial Court has
original jurisdiction over the crime of concubinage.
The Solicitor General and the private prosecutor point out that the
duration of destierro, which is between six (6) months and one (1)
day to six (6) years [Art. 27, RPC], is beyond the jurisdiction of the
inferior courts to impose. Thus, they conclude that either (1) the
Regional Trial Courts and the inferior courts have concurrent
jurisdiction over the crime of concubinage [Solicitor General's
Motion for Reconsideration, p. 11; Rollo, p. 521; or (2) the Regional
Trial Courts and the inferior courts have "split jurisdiction," the
latter having jurisdiction over the crime as regards the husband
and the former as regards the concubine [Private Prosecutor's
Motion for Reconsideration, p. 3; Rollo, p. 58].
Under the Judiciary Reorganization Act of 1980 (B.P. Blg. 129), the
inferior courts shall exercise exclusive original jurisdiction over "all
offenses punishable with imprisonment of not exceeding four (4)
years and two (2) months [Sec. 32 (2)] while the Regional Trial
Courts shall have exclusive original jurisdiction" in all criminal
cases not within the exclusive jurisdiction of any court, tribunal or
body" [Sec. 20]. Ostensibly, Sec. 20 of B. P. Blg. 129 would grant to
the Regional Trial Courts jurisdiction over crimes punishable with
destierro, such as concubinage, since destierro is not an offense
punishable with imprisonment of not exceeding four (4) years and
two (2) months. However, the Court, after a careful reading of B.P.
Blg. 129, is of the considered opinion that there was no intention to
overturn the doctrine laid down in Uy Chin Hua v. Dinglasan and
People v. Santos. It is quite evident that among the important
factors considered in the allocation of jurisdiction between the
Regional Trial Courts and the inferior courts are the gravity of both
the offense and the imposable penalty. It is not, therefore
unreasonable to state that the legislature granted to the Regional
Trial Courts jurisdiction over crimes whose penalties are harsher
than those vested in the inferior courts. And since it is already a
settled rule that destierro, by its nature, is a lighter penalty than
imprisonment [Uy Chin Hua v. Dingalasan, supra], it follows that
even under the Judiciary Reorganization Act of 1980, jurisdiction
over crimes punishable with destierro is vested not in the Regional
Trial Courts but in the inferior courts.
OSTRAND, J.:
It appears from the evidence that the complainant and the accused
Agapito Francisco, were legally married on February 1, 1910. On
December 30, 1922, the relations between the spouses became
stained due to the fact that the wife had ascertained that the
husband had maintained illicit relations with another woman, and
she threatened him with separation if he not mend his ways. The
husband promised improvement and, to demonstrate his sincerity,
confessed that he had two children with his codefendant, Josefina
Mantelo, and proposed that if she, the wife, would allow him to pay
P200 a month to said children, he would discontinue his relations
with Josefina. To this proposition the wife agreed and continued to
live with her husband until 1925, when they separated after
executing an agreement in writing to that effect. The agreement,
among other things, contains the following clauses:
"Whereas as it has become impossible for the husband and the wife
to live together due to the fact that the former has sustained
intimate relations with one Josefina Mantelo and that as a result of
said relations, a child, by the name of Josefina, was born on the
11th of June, 1921, and baptized in the Catholic Parochial Church
in Quiapo, Manila, on the 7th of January, 1923, and that another
child named Dolores Loreto was born on December 10, 1922, and
baptized in the same church on June 10, 1923, and that a male
child was born on December 30, 1924; . . .
Upon trial the court below found the defendants guilty as charged
in the complaint and sentenced Agapito Francisco to one year, eight
months and twenty-one days of prision correccional with the
accessory penalties and, likewise, sentenced Josefina Mantelo to
suffer two years, four months and one day of banishment. From
this sentence the defendants appealed.
EN BANC
DECISION
TORRES, J. :
It was fully shown at the trial that the defendant Juan Rivera legally
married Anselma Garcia on June 3, 1893, in the town of Lubao,
Pampanga, and during the first years of their marriage they had
various children, of whom only Gregorio Rivera has survived; that
said spouses continued to live together until 1902 when Rivera
separated from his wife and went to live in marital relations with
Rafaela Vitug, who was likewise separated from her husband Carlos
Punsalan; that since the said year 1902 the defendant Rivera and
Vitug have been living together as man and wife in different places
and especially in the town of Lubao, Pampanga; that since that time
they have been seen to go about always together in public, in the
church, and even in the streets of this city of Manila, for on one
occasion when the injured wife met them in one of the streets of
Manila, Juan Rivera told her that he was seeking pretexts for
separating from his concubine; that both in the houses the
defendant Rivera had in the barrio of Pulita of the town of
Floridablanca and in the barrio of San Vicente of Lubao, as well as
in the house of the parents of the defendant Vitug in the barrio of
San Francisco and in that of the grandfather of the defendant
Rivera himself in the barrio of San Nicolas of the said town of
Lubao, they were seen to retire together and to pass the nights lying
in each other’s embrace in the same bed.
The facts set forth really constitute the crime of concubinage with
scandal, provided for and punished in article 437 of the Penal Code,
for the defendant Juan Rivera, lawful husband of the complainant
Anselma Garcia, separated from her and has been living from 1902
up to the date of the complaint, January 24, 1913, with Rafaela
Vitug, also married, and they have been going about the streets of
the town wherein they resided and performing overt acts of
concubinage in sight of everybody, without any reserve or
consideration of the offense to law and morality, their conduct
producing a bad example among their neighbors and other
acquaintances; wherefore it is beyond doubt that they have violated
the penal law.
The defendants pleaded not guilty, and Rafaela Vitug, the only one
who testified in the case, denied that she had lived in marital
relations with her codefendant Juan Rivera.
Notwithstanding the facts stated, it appears from the trial that since
1902, when Juan Rivera ceased to live with his wife Anselma
Garcia, until 1912, when the latter filed a complaint that her
husband was living in concubinage with another woman, with
whom he has been living within and without the conjugal home for
a period of more than ten years, the complainant has remained
silent in spite of the fact that she frequently saw her husband in
company with his concubine in the same town in which she lived.
"The provisions of articles 434 and 435 are applicable to the case
referred to in this article."cralaw virtua1aw library
"No penalty shall be imposed for the crime of adultery except upon
the complaint of the aggrieved spouse.
"The aggrieved spouse can only file such a complaint against both
offenders, if both are living, and not at all if he or she has consented
to the adultery or pardoned either of them."cralaw virtua1aw library
It has been alleged by the defense that the injured woman filed the
complaint against her husband in 1912 by inducement of persons
opposed to him in the election for the office of municipal president
of Lubao, for which her husband Rivera was a candidate; and that
the later complaint filed in January of 1913 by like inducement was
due to the fact that he had been elected president.
EN BANC
TORRES, J.:
The crime in this case is provided for and penalized by article 437 of
the Penal Code, as follows:
The unlawful union of a married man with a woman not his wife,
when the two live within a town and in the same house as lawful
husband and wife, go together through the streets of the town,
frequent places where large crowds gather, and commit acts in
plain sight of the community without caution and with effrontery, is
a procedure that gives rises to criticism and general protest among
the neighbors and by its bad example offends the conscience and
feelings of every moral person; and when these conditions attend
the conduct of a married persons it is indubitable that his
concubinage with another woman, even though she does not live in
his home, carries with it the circumstance of scandal required by
the law to make his action criminal.