EN BANC
[G.R. No. 48183. November 10, 1941. ]
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. RODOLFO A. SCHNECKENBURGER, ET AL., Defendants-Appellants.
Cardenas & Casal, for Appellants.
Solicitor-General Ozaeta and Acting Solicitor Luciano, for Appellee.
SYLLABUS
1. CRIMINAL LAW AND PROCEDURE; CONCUBINAGE; BIGAMY; DOUBLE JEOPARDY. — As to appellant’s plea of double jeopardy, it needs only be observed that the offense of bigamy for which he was convicted and that of concubinage for which he stood trial in the court below are two distinct offenses in law and in fact as well as in the mode of their prosecution. The celebration of the second marriage, with the first still existing, characterizes the crime of bigamy; on the other hand, in the present case, mere cohabitation by the husband with a woman who is not his wife characterizes the crime of concubinage. The first is an offense against civil status which may be prosecuted at the instance of the state; the second, an offense against chastity and may be prosecuted only at the instance of the offended party. And no rule is more settled in law than that, on the matter of double jeopardy, the test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense.
2. ID.; ID.; PRIOR CONSENT; PARDON. — The document executed by and between the accused and the complainant in which they agreed to be "en completa libertad de acción 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 the illicit acts of the other.
3. ID.; ID.; ID.; ID. — It was said before (People v. 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. This is a narrow view in no way warranted by the language, as well as the manifest policy, of the law.
4. ID.; ID.; ID.; ID. — The second paragraph of article 344 of the Revised Penal Code provides: "The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor, in any case, if he shall have consented or pardoned the offenders." As the term "pardon" unquestionably refers to the offense after its commission, "consent" must have been intended, agreeably with its ordinary usage, to refer to the offense prior to its commission. No logical difference can indeed be perceived between prior and subsequent consent, for in both instances as the offended party has chosen to compromise with his/her dishonor; he/she becomes unworthy to come to court and invoke its aid in the vindication of the wrong. For instance, a husband who delivers his wife to another man for adultery, is as unworthy, if not more, as where, upon acquiring knowledge of the adultery after its commission, he says or does nothing. Held: That prior consent is as effective as subsequent consent to bar the offended party from prosecuting the offense.
5. ID.; ID.; ID.; ID.; SITUATION IS FOR THE LEGISLATURE TO REMEDY. — The foregoing conclusion should not be misconstrued as legalizing an agreement to do an illicit act, in violation of law. It should be taken only to mean that an agreement of the tenor entered into between the parties herein, operates, within the plain language and manifest policy of the law, to bar the offended party from prosecuting the offense. If there is anything condemnatory in a situation of this character, the remedy lies not with the Court but with the legislative department of the government. What the law is, not what it should be, defines the limits of the Court’s authority.
2. ID.; ID.; PRIOR CONSENT; PARDON. — The document executed by and between the accused and the complainant in which they agreed to be "en completa libertad de acción 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 the illicit acts of the other.
3. ID.; ID.; ID.; ID. — It was said before (People v. 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. This is a narrow view in no way warranted by the language, as well as the manifest policy, of the law.
4. ID.; ID.; ID.; ID. — The second paragraph of article 344 of the Revised Penal Code provides: "The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor, in any case, if he shall have consented or pardoned the offenders." As the term "pardon" unquestionably refers to the offense after its commission, "consent" must have been intended, agreeably with its ordinary usage, to refer to the offense prior to its commission. No logical difference can indeed be perceived between prior and subsequent consent, for in both instances as the offended party has chosen to compromise with his/her dishonor; he/she becomes unworthy to come to court and invoke its aid in the vindication of the wrong. For instance, a husband who delivers his wife to another man for adultery, is as unworthy, if not more, as where, upon acquiring knowledge of the adultery after its commission, he says or does nothing. Held: That prior consent is as effective as subsequent consent to bar the offended party from prosecuting the offense.
5. ID.; ID.; ID.; ID.; SITUATION IS FOR THE LEGISLATURE TO REMEDY. — The foregoing conclusion should not be misconstrued as legalizing an agreement to do an illicit act, in violation of law. It should be taken only to mean that an agreement of the tenor entered into between the parties herein, operates, within the plain language and manifest policy of the law, to bar the offended party from prosecuting the offense. If there is anything condemnatory in a situation of this character, the remedy lies not with the Court but with the legislative department of the government. What the law is, not what it should be, defines the limits of the Court’s authority.
D E C I S I O N
MORAN, J.:
On March 16, 1926, the accused Rodolfo A. Schneckenburger married the complainant Elena Ramirez Cartagena and after seven years of marital life, they agreed, for reason of alleged incompatibility of character, to live separately from each other. And on May 25, 1935 they executed a document which in part recites as follows:jgc:chanrobles.com.ph
"Que ambos comparecientes convienen en vivir separados el uno del otro por el resto de su vida y se comprometen, y obligan reciprocamente a no molestarse ni intervenir ni mezclarse bajo ning
"Que ambos comparecientes convienen en vivir separados el uno del otro por el resto de su vida y se comprometen, y obligan reciprocamente a no molestarse ni intervenir ni mezclarse bajo ning
