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PHILIPPINE SUPREME COURT DECISIONS

EN BANC

[G.R. No. L-46310. October 31, 1939. ]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. MARCIANO GONZALES, Defendant-Appellant.

Eduvigio E. Antona; for Appellant.

Solicitor-General Ozaeta and Assistant Attorney Zulueta; for Appellee.

SYLLABUS


1. CRIMINAL LAW AND PROCEDURE; HUSBAND WHO DID NOT SURPRISE HIS WIFE IN THE VERY ACT OF ADULTERY, BUT THEREAFTER; PARRICIDE. — Even if the accused caught his wife rising up and I. already standing and buttoning his drawers, the accused cannot invoke the privilege of article 247 of the Revised Penal Code, because he did not surprise the supposed offenders in the very act of committing adultery, but thereafter, if the respective positions of the woman and the man were suffIcient to warrant the conclusion that they had committed the carnal act. (3 Viada, Penal Code, p. 96; People VS. Marquez, 53 Phil., 260.)


D E C I S I O N


CONCEPCION, J.:


Marciano Gonzales appealed from the judgment of the Court of First Instance of Tayabas which found him guilty of parricide and sentenced him to reclusion perpetua with is the accessories of the law, to indemnify the heirs of the deceased, Sixta Quilason, in the amount of P1,000, and to pay the costs.

At the trial, the appellant testified that at midday on June 2, 1938, on returning to his house from the woods, he surprised his wife, Sixta Quilason, and Isabelo Evangelio in the act of adultery, the latter having escaped by jumping through the door of the house. He scolded his wife for such act, told her that the man was the very one who used to ask rice and food from them, and counseled her not to repeat the same faithlessness. His wife, promised him not to do the act again. Thereafter — the accused continued testifying — he left the house and went towards the South to see his carabaos. Upon returning to his house at about five o’clock in the afternoon, and not finding his wife there, he looked for her and found her with Isabelo near the toilet of his house in a place covered with underbush. When he saw them, his wife was rising up, while Isabelo, who was standing and buttoning his drawers, immediately took to his heels. The accused went after him, but unable to overtake him, he returned to where his wife was and, completely obfuscated, attacked her with a knife without intending to kill her. Thereafter, he took pity on her and took her dead body to his house.

The appellant contends that, having surprised his wife, in the afternoon of the date in question, under circumstances indicative that she had carnal intercourse with Isabelo, he was entitled to the privilege afforded by article 247 of the Revised Penal Code providing: "Any legally married person who, having surprised his spouse in the act of committing sexual intercourse with another person, shall kill either of them or both of them in the actor immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro. (Emphasis ours.)

We do not believe that the accused can avail himself of the aforesaid article, because the privilege there granted is conditioned on the requirement that the spouse surprise the husband or the wife in the act of committing sexual intercourse with another person, the accused did not surprise his wife in the very act of carnal intercourse, but after the act, if any such there was, because from the fact that she was rising up and the man was buttoning his drawers, it does not necessarily follow that a man and a woman had committed the carnal act.

We cannot, therefore, entirely accept the defense sought to be established by the accused, first, because his testimony is improbable. It is not conceivable that the accused had only mildly counseled his wife not to repeat committing adultery with Isabelo, instead of taking harsher measures as is natural in such circumstances. if it were true that he had surprised the two offenders in the act of adultery on returning to his house at midday on the date in question. Neither is it likely that a woman thirty years of age, like Sixta Quilason, and twenty-five-year-old Isabelo Evangelio, both of sound judgment as is to be supposed, had dared to have carnal intercourse near the toilet of the offended party’s house, a place which is naturally frequented by some persons. The circumstance that the place was covered by weeds, does not authorize the conclusion that the offenders could lay concealed under the weeds because the latter do not usually grow to such height as to conceal or cover two persons committing the to guilty act. It seems that under the circumstances it is unnatural that they would execute the act in a place uncovered and open. We do not want to suppose that the sexual passion of two persons would border on madness. Secondly, because even assuming that the accused caught his wife rising up and Isabelo already standing and buttoning his drawers, the accused cannot invoke the privilege of article 247 of the Revised Penal Code, because he did not surprise the supposed offenders in the very act of committing adultery, but thereafter, if the respective positions of the woman and the man were sufficient to warrant the conclusion that they had committed the carnal act. (3 Viada, Penal Code, p. 96; People v. Marquez, 53 Phil., 260).

Taking into account the mitigating circumstances of lack of intention on the part of the accused to commit so grave a wrong as that committed upon the person of the deceased, and of his lack of instruction, the appealed judgment is modified, and the accused is sentenced to the penalty of twelve years and one day to twenty years of reclusion temporal and to indemnify the heirs of the deceased in the amount of P1,000, with the costs. So ordered.

Villa-Real and Diaz, JJ., concur.

Separate Opinions


AVANCEÑA, C.J., concurring:chanrob1es virtual 1aw library

I agree with the majority decision as to the result. I do not believe the testimony of the accused, the only evidence in his defense, that at noon of that day he found his wife in his house having carnal intercourse with Isabelo Evangelio, and that in the afternoon, some hours thereafter, he saw them in the underbush near the toilet, Isabelo buttoning his drawers and his wife rising up from the ground. Isabelo denied these facts. The accused, immediately after his wife’s death, told his sister-in-law and the barrio lieutenant that she had committed suicide. Subsequently, in the justice of the peace court, he pointed to Isabelo as the killer of his wife.

MORAN, J., concurring:chanrob1es virtual 1aw library

I concur in the dispositive part.

The husband has no right to take the life of his wife. He has no right to do so even on the ground of conjugal infidelity. The law does not punish such infidelity by death. Much less, therefore, can the husband punish it by that penalty. The law nevertheless establishes one exception, whereby it justifies the husband if the latter kills his wife upon surprising her "in the act of committing sexual intercourse with another person." (Article 247, Revised Penal Code.) It is because the law, in such a case, considers the husband as acting in a justified burst of passion. But to avail himself of the exception, the husband has to show that he has acted within its just bounds, that is, that he has surprised his wife in the carnal act with another, or under circumstances which unmistakably evidence the execution of the carnal act.

I agree that for a husband to be justified, it is not necessary that he sees the carnal act being committed by his wife with his own eyes. It is enough that he surprises them under such circumstances as to show reasonably that the carnal act is being committed or has just been committed. Thus, for instance, if the offended husband, as in the case of U. S. v. Alano, 32 Phil., 381, had seen the supposed adulterer on top of his wife, there would be sufficient ground to justify him, although he had not seen the copulation with his own eyes. If the husband surprises his wife with another in scant apparel in a hotel room and kills her, there would also be sufficient ground to justify him. (See U. S. v. Feliciano, 36 Phil., 753.)

In the present case, the acts attributed to the deceased and Isabelo Evangelio do not conclusively show that they had committed adultery in the underbush. From the fact that, in a open field, she was rising up and pulling down her skirt while he was buttoning his drawers nearby, it does not necessarily follow that they had carnal intercourse. It does not appear in what position she was found before she rose up, or how she stood up and pulled down her skirt. She could have been in an ordinary sitting position before rising up and, to avoid raising her skirt, she held it down when she stood up. And as to him, the fact that he was buttoning his drawers only means that they were unbuttoned, but anyone may be in such circumstance without having carnal intercourse with any woman. It may be that the woman, in the afternoon in question, was sitting near the toilet of her house, and that while in this position, Isabelo Evangelio, who answered the call of nature in another place, approached her buttoning his drawers, and she then stood up. And this hypothesis is entirely consistent with the presumption of innocence in favor of both.

It is true that, at noon time, the deceased and Isabelo Evangelio committed adultery in the conjugal house of the offended husband. But this is no evidence that they committed adultery in the afternoon of the same day. An accused cannot be found guilty of one crime just because he committed the same crime before. One of the rules covered by the principle res inter alios acta is to the effect that "evidence that one did or committed to do a certain thing at one time is not admissible to prove that he did or committed to do the same or a similar thing at another time." (Elliott on Evidence, p. 216.) The adultery committed at noon time only makes the acts executed by the deceased and Isabelo Evangelio in the shrubbery highly suspicious. But mere suspicions do not justify a husband in killing his wife.

IMPERIAL, J., dissenting:chanrob1es virtual 1aw library

At noon time on June 2, 1938, the appellant, on returning to his conjugal house from the woods where he had been working, surprised his wife Sixta Quilason, the deceased, and her paramour, Isabelo Evangelio, in the act of adultery. Upon seeing him, Evangelio escaped through the door of the house. The appellant approached his wife and merely scolded her for the act she had committed, making her understand that she would not get anything from continuing her illicit relations with Evangelio because the latter was without means of livelihood and used to ask rice and food from them. The deceased promised the appellant not to fail him again. After resting for a while, the appellant again left the house towards the South to see and look after his carabaos. At five o’clock in the afternoon, he returned to his house and, not finding his wife therein, looked for her in the neighborhood, finding her again with Isabelo Evangelio. On this occasion he found his wife raising herself up in ashrubbery near the toilet of the conjugal home, pulling down her skirt with her hands, and Isabelo Evangelio standing near her buttoning his drawers. The latter took to his heels upon noticing the presence of the appellant. The latter gave chase, but as he was unable to overtake Evangelio, he returned to where his wife was and in a fit of passion attacked and killed her with his knife, thereafter taking her dead body home.

Upon the facts above set out, the majority decision finds the appellant guilty of parricide, and considering in his favor the mitigating circumstances of lack of intention to cause so grave a wrong as that committed and of his lack of instruction, sentences him to the indeterminate penalty of twelve years and one day to twenty years of reclusion temporal, to indemnify the heirs of the deceased in the amount of P1,000, and to pay the costs. The majority decision denies to the appellant the benefit afforded by article 247 of the Revised Penal Code to this effect:jgc:chanrobles.com.ph

"ART. 247. Death or physical injuries inflicted under exceptional circumstances. — Any legally married person who, having surprised his spouse in the act of committing sexual intercourse with another person, shall kill either of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro.

"If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment.

"These rules shall be applicable, under the same circumstances, to parents with respect to their daughters under eight years of age, and their seducers, while the daughters are living with their parents.

"Any person who shall promote or facilitate the prostitution of his wife or daughter, or shall otherwise have consented to the infidelity of the other persons shall not be entitled to the benefits of this article."cralaw virtua1aw library

In my opinion the proven facts bring the appellant within the purview of article 247 and make him deserving of the benefit therein provided. The legal provision should not be interpreted so literally and strictly as is done in the majority decision. The latter declines to give the benefit because it finds that the appellant did not surprise his wife and her paramour in adultery or in the very act of committing it. It seems to me that the privilege or benefit extends not only to the act of adultery, but also to any plain and positive facts which lead to no other reasonable conclusion than that the adultery has been committed. If the legal provision should be interpreted literally and narrowly, as has been done, then it would likewise not be an act of adultery if a husband surprises his wife under another man, both of them being naked, while the offended husband has not seen the consummation of the carnal act. Thus viewed, the result is a departure from the intention and purpose of the legal provision. Taking into account the position of the deceased and her paramour, what they were doing with their clothes, and the solitary place covered with underbush, there could be no other conviction than that they had just committed the carnal act, which is what warrants the imposition of a lighter penalty under article 247.

The deduction made that the guilty parties could not have executed the carnal act in that place finds no support in the reality of the facts or in the lessons of experience gained through a reading of the judicial annals. Adultery is not always committed in a ready and luxurious room, or in a comfortable bed embellished with carvings.

The appellant, in my opinion, should be sentenced only to two years, four months and one day of destierro, in the manner provided by the Revised Penal Code, with the costs.

LAUREL, J., dissenting:chanrob1es virtual 1aw library

I am unable to agree with the decision of the majority of my brethren in this case and I find it my duty to express my dissent.

I am of the opinion that the benefit of article 247 of the Revised Penal Code should be extended to the appellant who should accordingly be sentenced to suffer the punishment of destierro in the manner prescribed by law. It is true that this article of the Code is limited in its application to cases where the offended spouse surprises the other "in the act of committing sexual intercourse," but considering the purpose which the legislator must have had in mind in extending the extraordinary or special attenuating circumstance to the offended spouse, this requirement should not invariably be given a literal interpretation, but each case should be subjected to the rigid judicial scrutiny to prevent abuse but not to frustrate the legislative rationale. To require performance of carnal act before the offended spouse could raise the chastising hand is to require the impossible in the majority of cases. Under the reasoning of the majority of my brethren, if a married woman at the appointed hour, in response to a common purpose, should meet her paramour at a designated place, both to enter a room alone, then and thereafter to undress themselves, perform mutual acts of the character of abusos deshonestos, all in preludiis to the carnal act, the offended husband must look on in the meantime and wait until the very physical act of coition takes place, if he were to receive the benefit of the special attenuation provided in section 247 of the Revised Penal Code. This interpretation is far from being rational and certainly does violence to the reason and purpose of the law. The circumstances are not for mature reflection or for the husband to engage in mathematical calculation. Precision was not contemplated by the legislator and could not have been. When, as expressed in the Exposicion de Motivos del Proyecto de la Comision de Codificacion, amendatory to the Spanish Penal Code of 1870, the offended spouse "en un triste momento vea desmoronarse la felicidad de su hogar y obre a impulsos de verdadero y sincero dolor", watchful waiting cannot be the rule. To receive the benefit of section 247 of the Revised Penal Code it is not necessary that the act be in ipsis rebus venereis, butit is sufficient that — borrowing the expression of the Romanists — it be in preludiis vel paulo post, provided that in the language of Pessina (Elementi, 2.
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