THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. MARIANO M. GALLEGOS ET AL., DEFENDANTS. MARIANO M. GALLEGOS, APPELLANT.

Aside from the question relating to the guilt or innocence of the appellant,
the principal question presented by this appeal is whether or not, in a criminal
action for the crime of adultery, one of the defendants may be tried alone,
where the complaint includes them both, and when for some reason or other one of
the codefendants has not been arrested and brought to trial.

In the present case a complaint was presented by the offended party against
the said defendants in the court of the justice of the peace of the municipality
of Cebu on the 11th day of October, 1916. Upon said complaint a warrant of
arrest was issued and Mariano M. Gallegos was arrested. His codefendant could
not be found. A preliminary examination was given to the said Mariano M.
Gallegos by the said justice of the peace, at the conclusion of which he was
held for trial in the Court of First Instance.

On the 31st day of January, 1917, the offended person presented the following
complaint in the Court of First Instance:

“The undersigned, as the offended husband, accuses Mariano M. Gallegos and
Benita Antioquia of the crime of adultery committed as follows:

“That from the month of November, 1914, to the month of October, 1916,
inclusive, in the municipality of Cebu, Province of Cebu, P. I., the said
accused (Gallegos) knowing that the accused Benita Antioquia is legally married
to the undersigned, said marriage not having dissolved up to this date,
voluntarily, illegally, and criminally, did lie with the accused (Antioquia)
several times, within and without the offended party’s own dwelling, and said
Benita Antioquia, on her part, being legally married to the undersigned, said
marriage not having been dissolved up to the present time, voluntarily,
illegally, and criminally, did lie with the accused (Gallegos) knowing full well
that same was not her husband; that as a result of their illicit relation the
said accused begot a daughter; in violation of
the law.”

Upon said complaint the defendant Mariano M. Gallegos was duly arraigned,
tried, found guilty of the crime charged in the complaint and sentenced by the
Honorable Adolph Wislizenus, judge, in accordance with article 433 of the Penal
Code, without the concurrence of either aggravating or extenuating
circumstances, to be imprisoned for a period of 3 years 6 months and 21 days of
prision correctional, and to pay one-half part of the costs. In the
same decision the lower court ordered that a new order of arrest be issued for
the arrest of the codefendant Benita Antioquia. From that sentence the defendant
Mariano M. Gallegos appealed to this court.

At the opening of the trial the attorney for the defendant Mariano M.
Gallegos presented a motion asking that the trial against him be suspended until
his codefendant could be arrested and brought into court, which motion was
denied by the lower court and the cause was finally brought on for trial upon
the 2d day of February, 1917. The appellant now alleges that the lower court
committed an error in compelling him to proceed to trial alone in the absence of
his codefendant.

The record shows that the complaint was signed by the offended person and
included both of the defendants, Mariano M. Gallegos and Benita Antioquia; that
a warrant of arrest was issued and Mariano M. Gallegos was arrested; that Benita
Antioquia, the codefendant, was not arrested, for the reason that she could not
be apprehended after due diligence.

While the law provides that the complaint must be presented, in a criminal
action for adultery, (a) by the offended person and (b)
against both of the alleged culprits, there is no provision of law requiring
that they shall be tried jointly. (Art. 434, Penal Code; sec. 1, Act No. 1773.)
Not only is there no law requiring that they should be tried jointly, but there
is a positive provision of law permitting them to be tried separately. (Section
33 of General Orders No. 58.)

The mere fact that article 434 of the Penal Code requires the offended
husband to institute the criminal action for adultery against both of the
alleged guilty parties does not necessarily prevent either of them from
obtaining a separate trial, nor prohibit the court from dismissing the complaint
as to one or the other under certain conditions, (U. S. vs. Topino and
Guzman, 35 Phil Rep., 901.)

When the complaint was filed by the offended husband against both of the
guilty parties, the proceedings then passed into the hands of the prosecuting
officer who may move for a dismissal of the complaint as to one if he is
satisfied that he cannot established guilty knowledge, on the part of the man,
of the fact that the woman was married, and such dismissal would not of itself
require the court to acquit the woman. (U. S. vs. Asuncion, 22 Phil.
Rep., 358; U. S. vs. De la Torre and Gregorio, 25 Phil. Rep., 36;
decision of the supreme court of Spain, January 17, 1889; decision of the
supreme court of Spain, October 24, 1894.)

There are numerous cases, after the complaint has been properly presented,
where one or the other of the alleged guilty parties in a criminal action for
adultery may be tried and sentenced separate from the codefendant. For example,
where one of the parties died after the commencement of the action, or where the
man was ignorant of the fact that the woman was a married woman at the time of
the commission of the alleged criminal act. (U. S. vs. Asuncion, 22
Phil. Rep., 358; U. S. vs. De la Torre and Gregorio, 25 Phil. Rep., 36;
decision of the supreme court of Spain, January 17, 1889; decision of the
supreme court of Spain, October 24, 1894.)

In view of the foregoing, we are of the opinion that the lower court did not
commit an error in requiring the appellant to proceed to trial alone in the
absence of his codefendant.

The appellant further alleges that the lower court committed an error in
permitting the case to be tried by a private attorney and in excusing the
prosecuting attorney from attending the hearing.

The record shows that at the commencement of the trial, the prosecuting
attorney asked permission to be absent or to retire from the court room for the
time being, and to leave the representation of the prosecution to the private
attorneys for the offended person. Said permission was granted and no objection
or protest was made by the defendant nor by his attorney. We believe, however,
that even if the defendant had objected to the permission granted by the court
allowing the prosecuting attorney to be absent, that the error assigned could
not in any way affect the sentence of the lower court. Section 38 of General
Orders No. 58 expressly permits the court to appoint an attorney to perform the
duties of the prosecuting attorney at the trial if the latter is absent. (U. S.
vs. Fernandez, 1 Phil. Rep., 539; U. S. vs. Labial and Abuso,
27 Phil. Rep., 82; U. S. vs. Despabiladeras and Laxamana, 32 Phil.
Rep., 442.)

In the latter case (U. S. vs. Despabiladeras and Laxamana,
supra), the precise question presented here was discussed and decided.
In the course of that decision, we said:

“It is every day.practice in this jurisdiction, as well as in the United
States generally, for the prosecuting attorney to turn over the active conduct
of criminal cases (especially those in which the offenses charged are of the
nature of those known as private offenses under the Spanish Penal Code) to
counsel employed by private prosecutors; and we see nothing objectionable in
this practice, provided always that the fiscal retains control of the
prosecution, and assumes full responsibility therefor.”

The appellant further contends that the lower court committed an error in
permitting the prosecution, after it had closed its case, to present additional
proof relating to the jurisdiction of the court.

Section 31 of General Orders No. 58 provides, among other things (a)
That the counsel for the United States must offer evidence in support of the
charge; (b) that the defendant, or his counsel, may offer evidence in
support of the defense, and (c) that the parties may then respectively
offer rebutting testimony, but rebutting testimony only, unless the court,
in furtherance of justice, permit them to offer new and additional evidence
bearing upon the main issue in question. Said section clearly provides
that, in the furtherance of justice, the court may grant either of the parties
the right and opportunity to adduce additional evidence bearing upon the main
issue in question. The question of the jurisdiction of the court is always a
question of importance; and if evidence is necessary to prove that fact, as it
is in all criminal cases, so far as the place of the commission of the crime is
concerned, and the prosecution fails to prove that fact, in the interest of
justice the court may always permit it to present additional evidence, if that
fact appears before the trial of the case is closed. And, moreover, an
examination of the record shows that, without the additional proof, the court
had a right to take judicial notice of the fact, from the evidence adduced, that
the crime committed, if committed at all, was within its jurisdiction. (U. S.
vs. Chua Mo, 23 Phil. Rep., 233; sec. 275, Code of Civ. Proc.; Marzon
vs. Udtujan, 20 Phil. Rep., 232; U. S. vs. Lim Soon, 34 Phil.
Rep., 668.)

Courts should be permitted to give a liberal interpretation to the law
permitting them to take judicial notice of the facts of public knowledge,
especially if a technical interpretation would have the effect of defeating the
very purpose and object of the law. (People vs. Etting, 99 Cal., 577;
People vs. Faust, 113 Cal., 172.) In the case of Master vs.
Morse (18 Utah, 21), it was held that courts might take judicial notice of the
fact that certain cities have been divided into lots, blocks and streets, and
that judicial notice would be taken of such division. (Board vs. State, 147
Ind.( 476; Gilbert vs. National Cash Register Co., 176 111., 288.)

Upon the question whether or not the defendant was guilty of the crime
charged in the complaint, the evidence shows beyond a reasonable doubt that he
committed the acts described in the complaint in the manner and form therein
described.

Therefore, the sentence of the lower court is hereby affirmed, with costs. So
ordered.

Arellano, C. J., Carson, Araullo, Street, Malcolm, and Avancena,
JJ., concur.