G.R. No. 96602. November 19, 1991
EDUARDO ARROYO, JR., PETITIONER, VS. COURT OF APPEALS AND THE PEOPLE OF THE PHILIPPINES, RESPONDENTS.
FELICIANO, J.:
In G.R. No. 96602, the Court summarized the facts of the case in
this manner:
“Dr. Jorge B. Neri filed a criminal complaint for adultery
before the Regional Trial Court (RTC), Branch 4, of Benguet against his wife,
Ruby Vera Neri, and Eduardo Arroyo committed on 2 November 1982 in the City of
Baguio.
Both defendants pleaded not guilty and after trial, the RTC
convicted petitioner and Mrs. Ruby Vera Neri of adultery as defined under
Article 333 of the Revised Penal Code.
The essential facts of the case, as found by the trial court and
the Court of Appeals, are as follows:
‘x x x. On November 2,
1982, accused, Mrs. Ruby Vera Neri in the company of Mrs. Linda Sare and
witness Jabunan, took the morning plane to Baguio. Arriving at around 11:00 a.m., they dropped first at the house of
Mrs. Vera, mother of Ruby Vera at Crystal Cave, Baguio City then proceeded to
the Mines View Park Condominium of the Neri spouses. At around 7:00 o’clock in the evening, accused Eduardo Arroyo
arrived at the Neris’ condominium. Witness opened the door for Arroyo who entered, he went down to and
knocked at the master’s bedroom where accused Ruby Vera Neri and her companion
Linda Sare were. On accused Ruby Vera
Neri’s request, Linda Sare left the master’s bedroom and went upstairs to the
sala leaving the two accused. About
forty-five minutes later, accused Arroyo Jr. came up and told Linda Sare that
she could already come down. Three of
them, thereafter, went up to the
sala then left the condominium.’ (Court of Appeals Decision, p. 4)”[1]
Petitioner Arroyo filed a Motion for Reconsideration of the Court
of Appeals’ Decision. Petitioner Ruby Vera Neri also moved for
reconsideration or a new trial, contending that a pardon had been extended by
her husband, private complainant Dr. Jorge B. Neri, and that her husband had later contracted marriage with
another woman with whom he is presently co-habiting. Both motions were denied by the Court of Appeals.
Petitioner Arroyo filed a Petition for Review (G.R. No. 96602)
dated 8 February 1991 which this Court denied in a Resolution dated 24 April 1991.
In the meantime, petitioner Neri filed a separate Petition for Review (G.R. No. 96715) dated 19 February 1991.
Petitioner Arroyo filed a motion for reconsideration dated 14 May
1991 and a motion dated 23 May
1991 for consolidation of G.R. No. 96602 with G.R. No. 96715.
On 3 June 1991, G.R. No. 96715 was consolidated with G.R. No.
96602 in the Third Division in accordance with long-standing practice of the
Court.
On 29 July 1991, the Third Division deliberated upon the case
which was then assigned to the ponente for the writing of the Court’s
Resolution.[2]
On 26 August 1991, Dr. Neri filed a manifestion, dated 14 May
1991,[3]
praying that the case against petitioners be dismissed as he had “tacitly consented” to his wife’s
infidelity.[4]
Petitioners then filed their respective motions praying for the
dismissal or for the granting of new trial of the case claiming as basis for
their motions Dr. Neri’s manifestation. The Solicitor-General was then asked to comment on the manifestation;
his comment was filed with this Court on 18 October 1991.[5]
In October 1991, the consolidated cases were, again in accordance
with long-standing practice of the Court, assigned to the First Division upon
the assignment of the ponente to that division. On 4 November 1991, the consolidated cases
were re-deliberated upon by the members of the First Division who reached the
same conclusion as the members of the Third Division of the Court.
In his Motion for Reconsideration in G.R. No. 96602, petitioner
Arroyo made the following contentions:
1. Dr. Neri’s affidavit of desistance which
states that the case was filed out of “pure misunderstanding” raises
questions as to the truth of the alleged admission made by Mrs. Neri;
2. The other prosecution witnesses’ corroborative
testimonies merely proved the existence of an illicit affair but not that
adultery was committed on the date and place in question;
3. Mrs. Neri’s separate petition for review
raised the issue of Dr. Neri’s alleged subsequent marriage to another woman
which, if proven, would preclude either of the spouses from filing charges of
adultery or concubinage against each other.
In G.R. No. 96715, petitioner Neri imputes the following errors
to the Court of Appeals:
“1. The Honorable Court of Appeals gravely
erred in not granting the motion for reconsideration and/or new trial of the
petitioner;
2. The Honorable Court of Appeals gravely
erred by violating the constitutional rights of petitioner against
self-incrimination;
3. The Honorable Court of Appeals erred in
failing to take into consideration the material inconsistencies of the
testimony of the complaining witness; and
4. The Honorable Court of Appeals gravely
erred in discarding medical testimony as to the physical impossibility of the
petitioner to have committed the crime charged.”[6]
The issues in the consolidated cases may be summarized as
follows:
1. Whether or not Dr. Neri’s affidavit of
desistance is sufficient to cast reasonable doubts on his credibility;
2. Whether or not Mrs. Neri’s constitutional
right against self-incrimination had been violated;
3. Whether or not Dr. Neri’s alleged
extra-marital affair precludes him from filing the criminal complaint on the
ground of pari delicto; and
4. Whether on not Dr. Neri’s manifestation is
sufficient basis for the granting of a new trial.
Deliberating on the:
1. Motion for Reconsideration in G.R. No.
96602, the Court believes that petitioner Arroyo has failed to show any ground
that would warrant the Court reversing its Resolution dated 24 April 1991; and
on the
2. Petition for Review docketed as G.R. No.
96715, the Court considers that petitioner Ruby Vera Neri has failed to show
reversible error on the part of the Court of Appeals in issuing its Decision
dated 21 May 1990 and its Resolution, dated
18 December 1990.
Petitioner Arroyo did not convince this Court in G.R. No. 96602
to dismiss the criminal case on the basis of Dr. Neri’s pardon. He, together with petitioner Neri, now cites
the same affidavit in the effort to cast doubts on the credibility of Dr.
Neri’s testimony given before the trial court. However, in the Court’s Resolution, dated 24 April 1991, dismissing the
Petition for Certiorari in G.R. No. 96602, the Court held that:
“It has been our constant holding that:
‘In certiorari proceedings under Rule 45, the findings of
fact of the lower court as well its conclusions on credibility of witnesses
are generally not disturbed, the question before the court being limited to
questions of law (Rule 45, Sec. 2). Specifically, the conclusions of the trial court on the credibility
of witnesses are given considerable weight, since said court is in the best
position to observe the demeanor, conduct and attitude of witnesses at the
trial. (Aguirre v. People, 155 SCRA 337
[1987]; underscoring supplied)’
Thus, the claim that Dr. Neri’s testimony is incredible is unavailing
at this stage. Besides, the
Court does not believe that such an admission by an unfaithful wife was
inherently improbable or impossible.”[7]
(Underscoring partly in the original and partly supplied)
The Court, in the said Resolution of 24 April 1991, had likewise
ruled on the claim that Mrs. Neri’s constitutional right against
self-incrimination had been disregarded when her admission to her husband in
the privacy of their conjugal home that she had indeed lain with petitioner
Arroyo was taken into account by the trial court, to wit:
“Dr. Jorge Neri was also presented as a witness and he testified
that sometime in December of 1982, he surprised his wife while she was looking
at some photographs in their bedroom in their house in Dasmariñas Village,
Makati. Accused Ruby Vera Neri then
turned pale and started for the door. Struck by this unusual behavior, Dr. Neri started looking around the
dressing room and he came upon a Kodak envelope with film negatives inside. He took the negatives for printing and a few
days later, armed with the photographs which showed his wife in intimate
bedroom poses with another man, confronted Ruby Vera Neri. It was at this point that Ruby Vera Neri
admitted to her husband that Eduardo Arroyo was her lover and that they went to
bed in Baguio on 2 and 3 November 1982.
x x x x
x x x x x
As to the constitutional issue, we held in Gamboa v. Cruz
(162 SCRA 642 [1988]) that:
‘The right to counsel attaches upon the start of an investigation,
i.e., when the investigating officer starts to ask questions to elicit
information and/or confession or admissions from respondent-accused.’
(Underscoring supplied)
In the present case, Dr. Neri was not a
peace officer nor an investigating officer conducting a custodial
interrogation, hence, petitioner cannot now claim that Mrs. Neri’s admission
should have been rejected.
In the case of Aballe v. People (183 SCRA 196 [1990]), the
Court held:
‘The declaration of an accused expressly acknowledging his guilt of
the offense may be given in evidence against him.
The rule is that any person, otherwise competent as witness, who
heard the confession, is competent to testify as to substance of what he heard
if he heard and understood all of it. An oral confession need not be repeated verbatim, but in such case it
must be given in its substance.
Compliance with the constitutional procedures on custodial
investigation is not applicable to a spontaneous statement, not elicited
through questioning, but given in an ordinary manner, whereby the accused orally
admitted having slain the victim.’
We also note that the husband is not precluded under the Rules of
Court from testifying against his wife in criminal cases for a crime committed
by one against the other (Section 22, Rule 129, Revised Rules of Court).
In short, the trial court and the Court of Appeals did not err in
admitting Dr. Neri’s testimony as he was a competent witness. Neither was said testimony rendered
inadmissible by the constitutional provision on the right to remain silent and
the right to counsel of a ‘person under investigation for the commission of an
offense.’
Petitioner next claims that the trial court erred in convicting him
on the basis of the failure of Ruby Vera Neri to take the witness stand. In People v. Gargoles (83 SCRA 282
[1978]), it was held that:
‘We have held that an accused has the right to decline to testify
at the trial without having any inference of guilt drawn from his failure to go
on the witness stand. Thus, a
verdict of conviction on the basis, solely or mainly, of the failure or refusal
of the accused to take the witness stand to deny the charges against him is a
judicial heresy which cannot be countenanced. Invariably, any such verdict deserves to be reversed.
Such situation does not obtain, however, in the case at bar. For while the trial court took note of
the failure of defendant to take the witness stand to deny the charge
against him, the same was not the main reason, much less the sole basis, of
the trial court in holding, as credible the testimony of complainant, and in
ultimately concluding that the crime of rape had been committed by the accused?appellant. (Underscoring supplied)’
Examination of the trial court decision
here shows that said failure to testify was not the sole nor the main basis of the
conviction. Aside from accused’s
failure to deny Dr. Neri’s testimony, the trial court also considered the
testimonies of Dr. Neri and other prosecution witnesses and the photographs of
the two accused in intimate poses (and three of which showed them half naked in
bed).”[8]
(Underscoring partly in the original and partly supplied)
We turn to the contention that pari–delicto
“is a valid defense to a prosecution for adultery and concubinage and that
in such a case ‘it would be only a hypocritical pretense for such spouse to
appear in court as the offended spouse’.”[9]
In the first place, the case cited does not support petitioner
Neri’s position. In the Guinucud
case, the Court found that the complaining husband, by entering into an
agreement with his wife that each of them were to live separately and could
marry other persons and by filing complaint only about a year after discovering
his wife’s infidelity, had “consented to, and acquiesced in, the
adulterous relations existing between the accused, and he is, therefore, not
authorized by law to institute the criminal proceedings.” In fine, the Guinucud
case refers not to the notion of pari delicto but to consent as a
bar to the institution of the criminal proceedings. In the present case, no such acquiescence can be implied: the accused did not enter into any agreement
with Dr. Neri allowing each
other to marry or cohabit with other persons; and Dr. Neri promptly filed his complaint after discovering
the illicit affair.
Moreover, the concept of pari delicto is not found in the
Revised Penal Code, but only in Article 1411 of the Civil Code. The Court
notes that Article 1411 of the Civil Code
relates only to contracts with
illegal consideration.[10] The
case at bar does not involve any illegal contract which either of the contracting parties is now seeking
to enforce.
Petitioners also contend that Dr Neri’s manifestation which
reads:
“2. Even before I filed the complaint in court
and before the pardon that I had extended to my wife and her co-accused, I was
in reality aware of what was going on between and therefore, tacitly consented
to my wife’s infidelity, x x x.”
should result in the dismissal of the
case or, at the very least, the remand of the case for new trial claiming that
in People v. Camara[11] it
was held that “the consent of the spouse is valid defense to a prosecution
for adultery and/or concubinage.”[12]
Dr. Neri’s manifestation amounts in effect to an attempted
recantation of testimony given by him before the trial court. It is settled that not all recantations by
witnesses should result in the
granting of a new trial.[13] In People
v. Follantes and Jacinto,[14] it
was held that:
“x x x. [R]ecantation by witnesses called on
behalf of the prosecution does not necessarily entitle defendant to a new trial. The question whether a new trial shall be
granted on this ground depends on all the circumstances of the case, including
the testimony of the witnesses submitted on the motion for the new trial. Moreover, recanting testimony is
exceedingly unreliable, and it is the duty of the court to deny a new
trial where it is not satisfied that such testimony is true. x x x.”[15]
(Underscoring supplied)
Succinctly put, the Court doubts the truthfulness and reliability
of Dr. Neri’s belated recantation. Dr.
Neri had two (2) previous occasions to make the claim contained in his
manifestation: first, in the compromise
agreement[16]
dated 16 February 1989 submitted before the Regional Trial Court of Makati,
Branch 149 in relation to Civil Case No. M-001; and second, his affidavit[17]
dated 23 November 1988 submitted to the Court of Appeals. Instead, however, these two (2) documents
merely stated that Dr. Neri had pardoned petitioners[18]
and the complaint was filed out of “pure misunderstanding”[19]
without hinting that Dr. Neri knew of the adulterous relations. It appears to the Court that Dr. Neri’s
manifestation was so worded as to attempt to cure the deficiency noted by the
Court in the two (2) previous documents in the disposition of the petition in G.R. No. 96602:
“Petitioner will find no solace in the cases he cites, in
support of his prayer to dismiss the case based on Dr. Neri’s pardon. People v Camara (100 Phil. 1098
(1957) is inapplicable as the affidavit there expressly stated that the wife
had consented to the illicit relationship. In Gomez v. Intermediate Appellate Court (135 SCRA 620 [1985]) a
case involving estafa, the criminal case was dismissed as the affidavit of
desistance specifically stated that the accused had nothing to do whatsoever
with the crime charged. In the present
case, the pardon did not state that Dr. Neri
had consented to the illicit relationship of petitioner and Mrs.
Neri. Neither did it state that the
case was filed against the wrong parties.”[20]
Moreover, while the manifestation is dated 14 May 1991, which
incidentally is also the date of petitioner Arroyo’s motion for
reconsideration, it was subscribed to only on 23 August 1991.
Petitioner Neri also contends that Dr. Neri’s affidavit of
desistance and the compromise agreement operate as a pardon meriting a new
trial. The Court notes that the cases
of People v. Camara (supra) and Gomez v. Intermediate
Appellate Court (supra) were the very same cases which petitioner
Arroyo cited in G.R. No. 96602 which the Court has already held to be
inapplicable in the present case.
The rule on pardon is found in Article 344 of the Revised Penal
Code which provides:
“ART. 344. x x x. — The crime 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 parties, if they are both alive, nor in any case, if
he shall have consented or pardoned the offenders.
x x x x
x x x
x x”
While there is a conceptual difference between consent and pardon
in the sense that consent is granted prior to the adulterous act while pardon
is given after the illicit affair,[21]
nevertheless, for either consent or pardon to benefit the accused, it must be
given prior to the filing of a
criminal complaint.[22] In
the present case, the affidavit of desistance was executed only on 23 November
1988 while the compromise agreement was executed only on 16 February 1989, after the trial
court had already rendered its decision
dated 17 December 1987 finding petitioners guilty beyond reasonable
doubt. Dr. Neri’s manifestation is both
dated and signed after issuance of our Resolution in G.R. No. 96602 on 24 April
1991.
It should also be noted that while Article 344 of the Revised
Penal Code provides that the crime of adultery cannot be prosecuted without the
offended spouse’s complaint, once the complaint has been filed, the control of
the case passes to the public prosecutor.[23]
Enforcement of our law on adultery is not
exclusively, nor even principally, a matter of vindication of the private honor
of the offended spouse; much less is it a
matter merely of personal or social hypocrisy. Such enforcement relates, more importantly, to protection of the
basic social institutions of marriage and the family in the preservation of
which the State has the strongest interest; the public policy here involved is
of the most fundamental kind. In
Article II, Section 12 of the Constitution there is set forth the following basic state policy:
“The State recognizes the sanctity of family life and shall
protect and strengthen the family as a basic autonomous social
institution. x x x”
The same sentiment has been expressed in
the Family Code of the Philippines in Article 149:
“The family, being the foundation of the nation, is a basic
social institution which public policy cherishes and protects. Consequently, family relations are governed
by law and no custom, practice or agreement destructive of the family shall be
recognized or given effect.”
In U.S. v. Topiño,[24]
the Court held that:
“x x x. The husband
being the head of the family and the only person who could institute the
prosecution and control its effects, it is quite clear that the principal
object in penalizing the offense by the state was to protect the purity of the
family and the honor of the husband, but now the conduct of the prosecution, after
it is once commenced by the husband, and the enforcement of the penalties
imposed is also a matter of public policy in which the Government is vitally
interested to the extent
of preserving the public peace and providing for the general welfare of
the community. x x x.”[25]
(Underscoring supplied)
As to the claim that it was impossible for petitioner Neri to
engage in sexual intercourse a month after her ceasarian operation, the Court
agrees with the Solicitor General that
this is a question of fact which cannot be raised at this stage. In any case, we find no reason to overturn
the Court of Appeals’ finding that “a woman who has the staying power to
volley tennis balls for fifteen minutes at the [John Hay] tennis court would
not be incapable of doing the sexual act” which ball play was followed, as
noted by the Court of Appeals “by a picture taking of both accused in different intimate
poses.”[26]
ACCORDINGLY, the Motion for Reconsideration in G.R. No.
96602 is hereby DENIED for lack of merit and this denial is FINAL. The Petition for Review in G.R. No. 96715 is
hereby similarly DENIED for lack of merit. Costs against petitioners.
Let a copy of this
Resolution and of Dr. Neri’s Manifestation and Motion subscribed on 23 August
1991 be forwarded to the Department of Justice for inquiry into the possible liability of Dr. Neri for
perjury.
Narvasa, (Chairman), Cruz, Griño-Aquino, and Medialdea, JJ., concur.
[1]
Resolution in G.R. No. 96602, promulgated 24 April 1991, p. 1; Rollo, p. 82.
[2]
Rollo in G.R. No. 96602, p. 142a.
[3]
The Court notes the while the manifestation was dated 14 May 1991, it was
subscribed only on 23 August 1991.
[4]
Rollo in G.R. No. 96602, p. 144.
[5]
Id., pp. 160-161.
[6]
Petition in G.R. No. 96715, pp. 7-8; Rollo, pp. 14-15.
[7]
Resolution in G.R. No. 96602, promulgated 24 April 1991, p. 4; Rollo in
G.R. No. 96602, p. 92.
[8]
Id., pp. 4-6; Rollo, pp. 85-87.
[9]
Petition in G.R. No. 96715, p. 9, Rollo, p 16, citing People v.
Guinucud and Tagayun, 58 Phil. 621.
[10]
See Gonzales v. Trinidad, 67 Phil. 682 (1939).
[11]
G.R. No. L-11085, 27 February 1957.
[12]
Motion, p. 2; Rollo of
G.R. No. 96602; p. 148.
[13]
People v. Pasilan, 14 SCRA 694
[1965].
[14]
64 Phil. 515 [1937].
[15]
64 Phil. at 536.
[16]
Rollo in G.R. No. 96715, pp. 91-100.
[17]
Id., p. 103.
[18]
Id., p. 99.
[19]
Id., p. 103.
[20]
Resolution in G.R. No. 96602,
promulgated 24 April 1991, pp. 4-6; Rollo in G.R. No. 96602, p. 94-95.
[21]
People v. Schneckenburger, 73 Phil. 413 (1941).
[22]
People v. Infante, 57 Phil. 138 (1932); Ligtas v. Court of
Appeals, 149 SCRA 514 (1987).
[23]
See U.S. v. Gallegos, 37 Phil 289 (1917); Rule 110, Section 5 of the
Rules of Criminal Procedure.
[24]
35 Phil. 901 (1916).
[25]
35 Phil. at 912.
[26]
Decision, p. 20, Rollo in G.R. No 96602, p. 68.