THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. ALFONSO GUINUCUD AND ROSARIO TAGAYUN, DEFENDANTS AND APPELLANTS.

This
is an appeal from a decision of the Court of First Instance of Isabela,
convicting the appellants of the crime of adultery. The prosecution was
instituted by the complaint of the husband of Rosario Tagayun, named
Ramon Palattao.

Upon arraignment, the accused pleaded not
guilty but on the hearing, admitted the facts alleged in the
information but presented evidence to prove that Ramon Palattao
consented to the adultery, which fact, if established, bars any
prosecution under article 344 of the Revised Penal Code. The pertinent
paragraphs of said article are as follows:

“Art. 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness.—The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse.

“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.”

It appears from the evidence in this case that the husband, Ramon
Palattao, in April 1930, abandoned and deserted his wife, Rosario
Tagayun, then aged 21, and their child. After that abandonment, Rosario
lived with her mother but made repeated efforts to win back her
husband. She went to the justice of the peace of San Pablo, Mariano
Castaneda, who testified that he called Ramon and endeavored to
persuade Ramon to take his wife back, but Ramon refused. Thereafter, at
the request of the mother of Rosario, the barrio lieutenant, Mariano
Tumaliuan, took Rosario and her child to Ramon’s house but she was
refused admission by the said Ramon. Thereafter, on July 3, 1930, the
husband, Ramon, induced his wife, Rosario, to sign the document which
appears in the record as Exhibit 1. He brought the document in
duplicate to the house of Rosario’s mother where both of them signed
both copies, he keeping the original and leaving her the carbon copy.
Exhibit 1 is as follows:

“COUPLE’S AGREEMENT

“We, Ramon Palattao and Rosario Tagayun, man and wife, enter into the following agreement:

“That
in view of the fact that, I, Ramon Palattao, the man, cannot stay and
live with the parent of Rosario Tagayun in barrio Lattu; and that in
view of the fact that I, Rosario Tagayun, the woman, cannot live with
the parent of Ramon Palattao in barrio Auitan;

“We mutually
agree by this present to separate from each other and that Ramon
Palattao can and I gave him the privilege to love or marry another
woman; so also Rosario Tagayun can accept or be married to another man;

“We
also agree that, as to the baby Leslie who is our child, it is our
right to have him by turn and we are bound to support him jointly;

“Finally
we state also that each of us has to find his or her means of existence
and neither of us has the right to bother the other as to his or her
livelihood;

“In witness whereof we sign at barrio Lattu in the municipality of San Pablo, province of Isabela, this 3rd day of July, 1930.

(Sgd.) “ROSARIO TAGAYUN

(Sgd.) RAMON PALATTAO”

At
the time said Exhibit 1 was signed, Rosario and her child were living
with Rosario’s mother and there is no evidence of any misconduct on her
part at that time or that she contemplated any illicit relations with
any other man. On the other hand, we are convinced from the conduct of
the husband Ramon that he solicited the signature of Rosario to said
agreement in his own interest and because he desired to have “the
privilege to love or to marry another woman”. At the trial of this
case, he denied that the signature in Exhibit 1 was his signature. This
was a palpable falsehood as a comparison with his signatures on other
documents in the files plainly shows. He even had the effrontery to
deny his signature to a motion for continuance which he filed in the
justice of the peace court.

He admitted on cross-examination
that, for more than a year before he filed the complaint in this case,
he knew that his wife Rosario and her coaccused Alfonso were living
together in the same house. During all that time he took no action
whatever to vindicate the honor of his name or to resent the open
offense to the integrity of his home, doubtless, because he felt bound
by the alleged agreement to give his consent to Rosario’s conduct or
because he expected her to reciprocate. As this court stated in the
case of People vs. Sensano and Ramos (p. 73, ante), he
was “assuming a mere pose when he signed the complaint as the
‘offended’ spouse,” and his conduct as shown by the evidence in this
case warrants the inference that he consented to, and acquiesced in,
the adulterous relations existing between the accused, and he is,
therefore, not authorized by law to institute this criminal proceeding.

The agreement above referred to (Exhibit 1) is void in law. (Cf. People vs. Tolentino, G. R. No. 34145, promulgated October 22, 1931.)^[1]

Whilst the agreement, Exhibit 1, is void in law, it is nevertheless
competent evidence to explain the husband’s inaction after he knew of
his wife’s living with the coaccused and to show that he acquiesced in
her conduct. The expression “if he shall have consented” in article 344
of the Revised Penal Code, which bars the “offended” husband from
instituting a prosecution, has no reference to any consent or agreement
prior to the commission of the offense but relates to an express or
implied acquiescence subsequent to the offense. This consent or
acquiescence need not be express but may be inferred from the conduct
or the long continued inaction of the husband after learning of the
offense. The husband who is truly “offended”, within the meaning of the
statute, will not sit passively by and allow his name and the honor of
his family to be flagrantly sullied by the notorious adultery of his
wife. Apart from that, the fact that he abandoned and deserted his wife
and child, in spite of all her efforts to maintain their home intact,
shows a callous indifference to every moral duty imposed upon him as
her husband and the father of their child. In this case, the very thing
happened which he might have foreseen and probably did foresee when he
abandoned his wife and deceived her into believing that she was free
when she signed the said agreement a year and a half before the offense
was committed. His consent to the offense before it was committed was
void but his tolerance of and acquiescence in the offense after it was
committed demonstrate that it is a hypocritical pretense for him now to
appear in court as the “offended party” and bar his right to prosecute
his wife.

Very apt in this connection are the following paragraphs in Groizard’s commentaries on similar provisions in the Codigo Penal of Spain:

“A
su vez, transigir un marido con su deshonor, consentir el adulterio y
luego ir a los tribunales querellandose de la mujer y de su complice,
es ser dos veces indigno: la primera, al conocer y no vindicar la
ofensa recibida, y la segunda, haciendola publica, con daño de toda la
familia, despues de haber demostrado que personalmente le afectaba en
poco.” (Page 48, Groizard’s Codigo Penal, Vol. 5.)

“A
las limitaciones de que acabamos de hablar, nosotros añadiriamos otra
que encontramos establecida en algunos codigos que en las concordancias
figuran. Fijariamos un plazo, mas o menos largo, para la presentacion
de la querella, pasado el cual, negariamos al marido el derecho de
producirla. El marido que tiene conocimiento de la violacion de la fe
conyugal, y deja pasar cuatro o seis meses sin acudir a los tribunales
demandando reparacion de las injurias, debe suponerse que tacitamente
las ha perdonado. Espacio ha tenido suficiente, cuando la herida
chorreaba sangre, para ejercer el derecho que la ley le daba; si no lo
hizo en un termino prudencial, no es justo que indefinidamente tenga a
la mujer bajo la amenaza de un castigo vergonzoso que cohiba
perpetuamente su espiritu, impidiendo su arrepentimiento y dificultando
la conciliacion conyugal, y con ella la paz de la familia.” (Page 49,
Groizard’s Codigo Penal, Vol. 5.)

The judgment below is reversed with costs de oficio.

Street, Malcolm, Abad Santos, and Vickers, JJ., concur.

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^[1]
In this case the court ordered: “That the decision of First Division
signed by Justices Street, Malcolm, Abad Santos, Vickers, and Butte, be
promulgated in lieu of the one signed by Justices Abad Santos, Vickers,
and Butte and promulgated on October 19, 1933, which has been
recalled.”

[1] 56 Phil., 802.