G.R. No. 2045. September 20, 1905

The evidence both for the Government and for the defendants proved
that the latter had been living together as husband and wife since the
year 1899.

Of the assignment of error made by the defendants in this court, the
first one, to the effect that the husband never made the complaint in
the action, is not supported by the record. That record shows that on
the 15th day of January, 1904, he signed, swore to, and presented to
the justice of the peace of Camalig a written complaint. The record
also shows that on the 24th of February, 1904, when the proceedings
were remitted by the justice of the peace to the Court of First
Instance, another written complaint was presented, signed by his
attorney and by himself, and sworn to.

Other objections to the complaint based upon an insufficient
statement of the facts constituting the offense can hot be considered
here, because they were not presented in the court below. (United
States vs. Sarabia,^[1] 3 Off. Gaz., 403.)

The evidence in the case is sufficient to show that the defendant,
Vicente Serra, knew that his codefendant was married. They lived
together in the same pueblo with the complaining witness. The mother of
the defendant Maria, a witness for the defense, testified that when the
relations between the defendants commenced, they fled from Camalig to
Marinduque.

The principal claim of the defendants is that the husband consented
to the adultery. We do not think that this is established by the
evidence. The husband testified that he had never consented to these
illicit relations, and he stated that on account of the official
positions occupied by the defendant Vicente, and for other reasons, he
did not commence proceedings in court before 1904, because he feared
that such action on his part would place him in a dangerous position.
The offense was committed in 1899, during the time of the revolutionary
government in Albay. At that time the defendant Vicente was a major
under General Paua. When the revolutionary government was overthrown
and the American government established, the defendant Vicente was made
chief of police of the town of Camalig. After he had ceased to be chief
of police he was still accustomed to carry a revolver. About this time
also occurred the reconcentration in Albay. We have already held in the
case of Gali vs. Sahagun^[1] (1 Off. Gaz., 658) that a delay
of seven months in presenting a complaint was not sufficient evidence
to prove that the husband had consented to the adultery, and in this
case, considering the unsettled state of affairs in Albay in 1899, and
for some time thereafter, and the authority which the defendant
exercised in the town, we do not think it can be said that the failure
of the husband to present a complaint proved that he gave such consent
to the adultery as is mentioned in the Penal Code.

The penalty which the law provides for this offense committed under
the circumstances shown in this case, should have been imposed in the
medium grade, and we fix it at three years six months and twenty-one
days. The judgment of the court below is modified by imposing that
sentence instead of the one imposed by the court below, and with such
modification the said judgment is affirmed, with the costs of both
instances against the appellants.

Arellano C. J., Torres, Mapa, Johnson, and Carson, JJ., concur.

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^[1] 4 Phil. Rep., 566.

^[1] 2 Phil. Rep., 425.