EN BANC
[G.R. No. 34510. August 31, 1931. ]
THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, v. BITUANAN (Moro), Defendant-Appellant.
Pastor Kimpo for Appellant.
Attorney-General Jaranilla for appellee
SYLLABUS
1. MARRIAGE AND DIVORCE; VALIDITY OF DIVORCES ACCORDING TO MORO CUSTOMS AND USAGES. — The question of whether or not a divorce of two Moros granted by a Datu according to Moro customs and usages is valid is mentioned in the decision, but is not expressly decided.
2. CRIMINAL LAW; ARTICLE 423 OF THE PENAL CODE CONSTRUED. — The privilege given in article 423 of the Penal Code extends only to the case of a husband who surprises his wife in the act of adultery, that is, actual carnal knowledge, with her paramour. As an example, the article does not apply to a husband who catches his wife sleeping with another man on the same bed.
2. CRIMINAL LAW; ARTICLE 423 OF THE PENAL CODE CONSTRUED. — The privilege given in article 423 of the Penal Code extends only to the case of a husband who surprises his wife in the act of adultery, that is, actual carnal knowledge, with her paramour. As an example, the article does not apply to a husband who catches his wife sleeping with another man on the same bed.
D E C I S I O N
MALCOLM, J.:
Moro Bituanan and Mora Sabay were married by Datu Alon according to Moro customs and usages. According to the same customs and usages, the Datu divorced the couple. Twenty days afterwards, Bituanan caught Sabay and a Moro by the name of Ali Sabpa sleeping on the same bed. Thereupon, Bituanan attacked Ali Sabpa and Sabay, killing the former and wounding the latter.
In the Court of First Instance of Cotabato, Judge of First Instance Natividad found Bituanan guilty of the crime of murder; but taking into consideration the provisions of section 166 of the Administrative Code of Mindanao and Sulu, sentenced the accused to twelve years and one day of imprisonment, reclusion temporal, with the accessory penalties, to indemnify the heirs of the deceased in the sum of P500, and to pay the costs. It is the sole contention of counsel for the accused, on appeal, that the decision of the lower court should be modified by applying article 423 of the Penal Code to the admitted facts. Said article provides that "Any husband who, having surprised his wife in the act of adultery, shall kill her or her paramour in the act, or shall inflict any serious physical injuries upon either, shall suffer the penalty of destierro."cralaw virtua1aw library
The marriage of Bituanan and Sabay, performed according to the rites of the Mohammedan religion, was valid. (Adong v. Cheong Seng Gee [1922], 43 Phil., 43.) This is so because of the nature of the provisions of the Philippines, as prescribed by statute, are two only — adultery on the part of the wife, or concubinage on the part of the husband, as determined by a proper court. (Francisco v. Tayao [1927], 50 Phil., 42.) Granting, without necessarily having to decide, that Bituanan and Sabay were, accordingly, not legally divorced, it only need be said that there is no evidence in the record showing that Bituanan surprised Sabay and Ali Sabpa in the act of adultery when he killed the latter. The privilege given in article 423 of the Penal Code extends solely to the case of a husband who surprises his wife in the act of actual adultery, that is, actual carnal knowledge with her paramour. (5 Viada, Codigo Penal Comentado, 5th ed., pp. 188-190, citing decisions of the Supreme Court of Spain.) Judgment will be affirmed, with the costs of this instance against the Appellant.
Avanceña, C.J., Johnson, Street, Villamor, Romualdez, Villa- Real and Imperail, JJ., concur.
In the Court of First Instance of Cotabato, Judge of First Instance Natividad found Bituanan guilty of the crime of murder; but taking into consideration the provisions of section 166 of the Administrative Code of Mindanao and Sulu, sentenced the accused to twelve years and one day of imprisonment, reclusion temporal, with the accessory penalties, to indemnify the heirs of the deceased in the sum of P500, and to pay the costs. It is the sole contention of counsel for the accused, on appeal, that the decision of the lower court should be modified by applying article 423 of the Penal Code to the admitted facts. Said article provides that "Any husband who, having surprised his wife in the act of adultery, shall kill her or her paramour in the act, or shall inflict any serious physical injuries upon either, shall suffer the penalty of destierro."cralaw virtua1aw library
The marriage of Bituanan and Sabay, performed according to the rites of the Mohammedan religion, was valid. (Adong v. Cheong Seng Gee [1922], 43 Phil., 43.) This is so because of the nature of the provisions of the Philippines, as prescribed by statute, are two only — adultery on the part of the wife, or concubinage on the part of the husband, as determined by a proper court. (Francisco v. Tayao [1927], 50 Phil., 42.) Granting, without necessarily having to decide, that Bituanan and Sabay were, accordingly, not legally divorced, it only need be said that there is no evidence in the record showing that Bituanan surprised Sabay and Ali Sabpa in the act of adultery when he killed the latter. The privilege given in article 423 of the Penal Code extends solely to the case of a husband who surprises his wife in the act of actual adultery, that is, actual carnal knowledge with her paramour. (5 Viada, Codigo Penal Comentado, 5th ed., pp. 188-190, citing decisions of the Supreme Court of Spain.) Judgment will be affirmed, with the costs of this instance against the Appellant.
Avanceña, C.J., Johnson, Street, Villamor, Romualdez, Villa- Real and Imperail, JJ., concur.
