THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. JUAN RIVERA AND RAFAELA VITUG, DEFENDANTS AND APPELLANTS.

This case was brought up on appeal filed by counsel for the defendants from
the judgment dated October 27, 1913, whereby the Honorable Julio Llorente,
judge, found them guilty of concubinage with scandal and sentenced Juan Rivera
to the penalty of one year eight months and twenty-one days of prision
correccional and Rafaela Vitug to two years four months and one day of
destierro, forbidding her to come within a radius of twenty-five
kilometers of the municipality of Lubao, Pampanga. Both were sentenced to the
accessories of the law, with allowance of credit for half the time of their
detention, and to payment of the costs in equal parts.

It was fully shown at the trial that the defendant Juan Rivera legally
married Anselma Garcia on June 3, 1893, in the town of Lubao, Pampanga, and
during the first years of their marriage they had various children, of whom only
Gregorio Rivera has survived; that said spouses continued to live together until
1902 when Rivera separated from his wife and went to live in marital relations
with Rafaela Vitug, who was likewise separated from her husband Carlos Punsalan;
that since the said year 1902 the defendant Rivera and Vitug have been living
together as man and wife in different places and especially in the town of
Lubao, Pampanga; that since that time they have been seen to go about always
together in public, in the church, and even in the streets of this city of
Manila, for on one occasion when the injured wife met them in one of the streets
of Manila, Juan Rivera told her that he was seeking pretexts for separating from
his concubine; that both in the houses the defendant Rivera had in the barrio of
Pulita of the town of Florida blanca and in the barrio of San Vicente of Lubao,
as well as in the house of the parents of the defendant Vitug in the barrio of
San Francisco and in that of the grandfather of the defendant Rivera himself in
the barrio of San Nicolas of the said town of Lubao, they were seen to retire
together and to pass the nights lying in each other’s embrace in the same
bed.

The facts set forth really constitute the crime of concubinage with scandal,
provided for and punished in article 437 of the Penal Code, for the defendant
Juan Rivera, lawful husband of the complainant Anselma Garcia, separated from
her and has been living from 1902 up to the date of the complaint, January 24,
1913, with Rafaela Vitug, also married, and they have been going about the
streets of the town wherein they resided and performing overt acts of
concubinage in sight of everybody, without any reserve or consideration of the
offense to law and morality, their conduct producing a bad example among their
neighbors and other acquaintances; wherefore it is beyond doubt that they have
violated the penal law.

The defendants pleaded not guilty, and Rafaela Vitug, the only one who
testified in the case, denied that she had lived in marital relations with her
codefendant Juan Rivera.

Notwithstanding the facts stated, it appears from the trial that since 1902,
when Juan Rivera ceased to live with his wife Anselma Garcia, until 1912, when
the latter filed a complaint that her husband was living in concubinage with
another woman, with whom he lias been living within and without the conjugal
home for a period of more than ten years, the complainant has remained silent in
spite of the fact that she frequently saw her husband in company with his
concubine in the same town in which she lived.

On June 13, 1912, the offended woman filed a complaint in the justice of the
peace court of Lubao, charging her husband Juan Rivera and Rafaela Vitug with
adultery, because they had entered into marital relations with great scandal (p.
47); but by another document dated the 17th of the same month and year, the
complainant Anselma Garcia set forth that in filing the foregoing complaint she
had confided in the disinterested advice of certain persons, but as she could
not rely upon the evidence to sustain it and having no interest in prosecuting
it further, she desisted and withdrew it and asked for final dismissal of the
case, which was ordered by the justice of the peace (p. 53). The next day, June
18, the separated spouses executed in the presence of two witnesses the document
at page 44, ratified before a notary public, wherein they both appear to have
declared among other things that because of incompatibility of habits and
because they were unable to live together as husband and wife, by common
agreement they had been separated since the year 1902, after which date it had
been agreed that their only child Gregorio Rivera should continue to live with
and be under the care of its mother Anselma Garcia, but that at any time their
said child should desire and wish to live with its father for the sake of its
education, its mother would not oppose this; and moreover they solemnly declared
that each one renounced any claim for damages against the other, in case they
might have such either at that time or in the future accruing to either by
reason of their marriage, and therefore they renounced any right that they might
have in their favor from that time thenceforward.

Nevertheless, under date of January 24,1913, the injured woman again filed
her complaint, charging her husband Rivera and his concubine Rafaela Vitug with
the crime of concubinage with public scandal.

Article 437 of the Penal Code says:

“The husband who shall keep a concubine in his home, or out of it with
scandal, shall be punished with the penalty of prision correccional in
its minimum and medium degrees.

“The concubine shall be punished with banishment.

“The provisions of articles 434 and 435 are applicable to the case referred
to in this article.”

Article 434 of the same code says:

“No penalty shall be imposed for the crime of adultery except upon the
complaint of the aggrieved spouse.

“The aggrieved spouse can only file such a complaint against both offenders,
if both are living, and not at all if he or she has consented to the adultery or
pardoned either of them.”

If the provisions of the second paragraph of this article 434 are applicable
to the case of a husband accused of concubinage with scandal, according to the
provisions of the last paragraph of the above-quoted article 437 of the code,
then when it has once been shown in this case that the complainant Anselma
Garcia gave her consent to the concubinage of her husband with Rafaela Vitug,
without having appealed to the authorities to denounce the act for more than ten
years after they began to live together in the same town in which she resided,
it is evident that she can institute no criminal action against her husband and
his concubine, by reason of her consent, as prescribed in the above-quoted
article 434 of the Penal Code.

The long period of time of over ten years that elapsed during which her
husband Juan Rivera was separated from her after 1902 and living in marital
relations with Rafaela Vitug, without its having occurred to her to denounce
such unlawful conduct, although they all lived in the town of Lubao, where the
immoral life her husband was leading with the defendant Vitug was public and
notorious, is proof of her consent thereto, and if only in June, 1912, it
occurred to her to accuse him of adultery, although a few days later she
desisted from her complaint and on the next day by common accord they executed
the agreement of separation set forth in the document at page 44, ratified
before a notary, the injured party has by such conduct demonstrated in an
indubitable manner that if before 1912 she had given her consent to the illegal
conduct of her husband, later she ratified it in a document setting forth that
she withdrew the complaint she had presented and in the agreement of separation
of which mention has been made.

It has been alleged by the defense that the injured woman filed the complaint
against her husband in 1912 by inducement of persons opposed to him in the
election for the office of municipal president of Lubao, for which her husband
Rivera was a candidate; and that the later complaint filed in January of 1913 by
like inducement was due to the fact that he had been elected president.

The theory to be deduced from these allegations is not impossible or
unlikely, because the silence Anselma Garcia kept during ten years and her later
attitude from the time when her erring husband might become president of the
town of Lubao, as did happen, remain unexplained; but even putting aside such a
theory and regarding it as a coincidence, it appears in the case that the
injured woman Anselma Garcia consented to the concubinage of her husband from
1902 up to the date of her last complaint in January, 1913; and therefore, under
the provisions of article 434 of the Penal Code, her complaint of concubinage
with scandal must be dismissed by reason of her consent, indicated by her
silence for over ten years.

It is to be noted that said crime is of almost a public nature, although for
the prosecution and punishment thereof the cause must be instituted by virtue of
a complaint of the injured spouse, in accordance with the last paragraph of
article 437 of the Penal Code; and as it is not a crime-of a private nature, it
is not enumerated in Act No. 1773.

For the foregoing reasons, the judgment appealed from should be reversed and
the case dismissed along with the complaint that instituted it, with the costs
in both instances de officio. So ordered.

Arellano, C. J., Johnson and Araullo,. JJ., concur.

Carson, J., concurs in the result.