EN BANC
[G.R. No. 1229. August 19, 1903. ]
FRANCISCO GALI, Complainant-Appellant, v. FAUSTINO SAHAGUN, ET AL., Defendants-Appellees.
Solicitor-General Araneta for Appellant.
Patrick J . Moore for Appellees.
SYLLABUS
1. CRIMINAL LAW; ADULTERY; CONSENT. — The mere fact that the injured husband allowed seven months to pass without instituting criminal proceedings against his wife and her paramour is not sufficient proof of his consent.
The defendants were prosecuted on a charge of adultery. The facts established by the evidence, briefly stated, are that the defendant Jacoba Agcanas left her husband, Francisco Gali, in December, 1901. About a month later he found out that she had returned to her mother’s house and was living there in adultery with the codefendant, Faustino Sahagun. On two occasions her husband went and demanded that she return to his house, which she refused to do, saving that she preferred to live with Sahagun. In July, 1902, Gali filed a complaint in the justice court of Dingras, in which town the complaining witness and the defendants lived, charging them with adultery. The trial court held that as the complaining witness, with full knowledge of the facts, had refrained for seven months from instituting proceedings for a prosecution, he had tacitly consented to the adultery of his wife within the meaning of article 434 of the Penal Code, and acquitted the defendants. Against this judgment the provincial fiscal and the complaining witness appealed.
The defendants were prosecuted on a charge of adultery. The facts established by the evidence, briefly stated, are that the defendant Jacoba Agcanas left her husband, Francisco Gali, in December, 1901. About a month later he found out that she had returned to her mother’s house and was living there in adultery with the codefendant, Faustino Sahagun. On two occasions her husband went and demanded that she return to his house, which she refused to do, saving that she preferred to live with Sahagun. In July, 1902, Gali filed a complaint in the justice court of Dingras, in which town the complaining witness and the defendants lived, charging them with adultery. The trial court held that as the complaining witness, with full knowledge of the facts, had refrained for seven months from instituting proceedings for a prosecution, he had tacitly consented to the adultery of his wife within the meaning of article 434 of the Penal Code, and acquitted the defendants. Against this judgment the provincial fiscal and the complaining witness appealed.
D E C I S I O N
ARELLANO, C.J. :
We find the accused guilty. There is not sufficient legal proof of the consent of the husband, for the mere fact that seven months passed without his having filed a complaint for the crime of adultery can not be regarded as such. It was error, therefore, to acquit the defendants, as did the court below in the judgment appealed, which appeal we consider solely in so far as it is presented by the injured husband, the only person entitled to institute proceedings for a crime of this class. We disregard the appeal taken by the fiscal.
Therefore, taking into consideration the mitigating circumstance of article 11, and the minority of the woman (her age was 16), under article 9, paragraph 2, we condemn Faustino Sahagun to two years and four months of prision correccional, and Jacoba Agcanas to four months and one day of arresto mayor, and to the payment of costs.
Torres, Cooper, Willard, Mapa and McDonough, JJ., concur.
Therefore, taking into consideration the mitigating circumstance of article 11, and the minority of the woman (her age was 16), under article 9, paragraph 2, we condemn Faustino Sahagun to two years and four months of prision correccional, and Jacoba Agcanas to four months and one day of arresto mayor, and to the payment of costs.
Torres, Cooper, Willard, Mapa and McDonough, JJ., concur.
