EN BANC

[ G.R. No. 150758, February 18, 2004 ]

VERONICO TENEBRO, PETITIONER, VS. THE HONORABLE COURT OF APPEALS, RESPONDENT.

D E C I S I O N

YNARES-SATIAGO, J.: 

We are called on to decide the novel issue concerning the effect of the judicial declaration of the nullity of a second or subsequent marriage, on the ground of psychological incapacity, on an individual’s criminal liability for bigamy. We hold that the subsequent judicial declaration of nullity of marriage on the ground of psychological incapacity does not retroact to the date of the celebration of the marriage insofar as the Philippines’ penal laws are concerned. As such, an individual who contracts a second or subsequent marriage during the subsistence of a valid marriage is criminally liable for bigamy, notwithstanding the subsequent declaration that the second marriage is void ab initio on the ground of psychological incapacity.

Petitioner in this case, Veronico Tenebro, contracted marriage with private complainant Leticia Ancajas on April 10, 1990. The two were wed by Judge Alfredo B. Perez, Jr. of the City Trial Court of Lapu-lapu City. Tenebro and Ancajas lived together continuously and without interruption until the latter part of 1991, when Tenebro informed Ancajas that he had been previously married to a certain Hilda Villareyes on November 10, 1986. Tenebro showed Ancajas a photocopy of a marriage contract between him and Villareyes. Invoking this previous marriage, petitioner thereafter left the conjugal dwelling which he shared with Ancajas, stating that he was going to cohabit with Villareyes.[1]

On January 25, 1993, petitioner contracted yet another marriage, this one with a certain Nilda Villegas, before Judge German Lee, Jr. of the Regional Trial Court of Cebu City, Branch 15.[2] When Ancajas learned of this third marriage, she verified from Villareyes whether the latter was indeed married to petitioner. In a handwritten letter,[3] Villareyes confirmed that petitioner, Veronico Tenebro, was indeed her husband.

Ancajas thereafter filed a complaint for bigamy against petitioner.[4] The Information,[5] which was docketed as Criminal Case No. 013095-L, reads:

That on the 10th day of April 1990, in the City of Lapu-lapu, Philippines, and within the jurisdiction of this Honorable Court, the aforenamed accused, having been previously united in lawful marriage with Hilda Villareyes, and without the said marriage having been legally dissolved, did then and there willfully, unlawfully and feloniously contract a second marriage with LETICIA ANCAJAS, which second or subsequent marriage of the accused has all the essential requisites for validity were it not for the subsisting first marriage.

CONTRARY TO LAW.When arraigned, petitioner entered a plea of “not guilty”.[6]

During the trial, petitioner admitted having cohabited with Villareyes from 1984-1988, with whom he sired two children. However, he denied that he and Villareyes were validly married to each other, claiming that no marriage ceremony took place to solemnize their union.[7] He alleged that he signed a marriage contract merely to enable her to get the allotment from his office in connection with his work as a seaman.[8] He further testified that he requested his brother to verify from the Civil Register in Manila whether there was any marriage at all between him and Villareyes, but there was no record of said marriage.[9]

On November 10, 1997, the Regional Trial Court of Lapu-lapu City, Branch 54, rendered a decision finding the accused guilty beyond reasonable doubt of the crime of bigamy under Article 349 of the Revised Penal Code, and sentencing him to four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum.[10] On appeal, the Court of Appeals affirmed the decision of the trial court. Petitioner’s motion for reconsideration was denied for lack of merit.

Hence, the instant petition for review on the following assignment of errors:I.   THE HONORABLE COURT OF APPEALS GRAVELY ERRED, AND THIS ERROR IS CORRECTIBLE IN THIS APPEAL — WHEN IT AFFIRMED THE DECISION OF THE HONORABLE COURT A QUO CONVICTING THE ACCUSED FOR (sic) THE CRIME OF BIGAMY, DESPITE THE NON-EXISTENCE OF THE FIRST MARRIAGE AND INSUFFICIENCY OF EVIDENCE.

II.  THE COURT ERRED IN CONVICTING THE ACCUSED FOR (sic) THE CRIME OF BIGAMY DESPITE CLEAR PROOF THAT THE MARRIAGE BETWEEN THE ACCUSED AND PRIVATE COMPLAINANT HAD BEEN DECLARED NULL AND VOID AB INITIO AND WITHOUT LEGAL FORCE AND EFFECT.[11]

After a careful review of the evidence on record, we find no cogent reason to disturb the assailed judgment.

Under Article 349 of the Revised Penal Code, the elements of the crime of Bigamy are:(1) that the offender has been legally married;(2) that the first marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code;(3) that he contracts a second or subsequent marriage; and(4) that the second or subsequent marriage has all the essential requisites for validity.[12]

Petitioner’s assignment of errors presents a two-tiered defense, in which he (1) denies the existence of his first marriage to Villareyes, and (2) argues that the declaration of the nullity of the second marriage on the ground of psychological incapacity, which is an alleged indicator that his marriage to Ancajas lacks the essential requisites for validity, retroacts to the date on which the second marriage was celebrated.[13] Hence, petitioner argues that all four of the elements of the crime of bigamy are absent, and prays for his acquittal.[14]

Petitioner’s defense must fail on both counts.

First, the prosecution presented sufficient evidence, both documentary and oral, to prove the existence of the first marriage between petitioner and Villareyes. Documentary evidence presented was in the form of: (1) a copy of a marriage contract between Tenebro and Villareyes, dated November 10, 1986, which, as seen on the document, was solemnized at the Manila City Hall before Rev. Julieto Torres, a Minister of the Gospel, and certified to by the Office of the Civil Registrar of Manila;[15] and (2) a handwritten letter from Villareyes to Ancajas dated July 12, 1994, informing Ancajas that Villareyes and Tenebro were legally married.[16]

To assail the veracity of the marriage contract, petitioner presented (1) a certification issued by the National Statistics Office dated October 7, 1995;[17]and (2) a certification issued by the City Civil Registry of Manila, dated February 3, 1997.[18] Both these documents attest that the respective issuing offices have no record of a marriage celebrated between Veronico B. Tenebro and Hilda B. Villareyes on November 10, 1986.

To our mind, the documents presented by the defense cannot adequately assail the marriage contract, which in itself would already have been sufficient to establish the existence of a marriage between Tenebro and Villareyes.

All three of these documents fall in the category of public documents, and the Rules of Court provisions relevant to public documents are applicable to all.

Pertinent to the marriage contract, Section 7 of Rule 130 of the Rules of Court reads as follows:Sec. 7. Evidence admissible when original document is a public record. — When the original of a document is in the custody of a public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof (Emphasis ours).This being the case, the certified copy of the marriage contract, issued by a public officer in custody thereof, was admissible as the best evidence of its contents. The marriage contract plainly indicates that a marriage was celebrated between petitioner and Villareyes on November 10, 1986, and it should be accorded the full faith and credence given to public documents.

Moreover, an examination of the wordings of the certification issued by the National Statistics Office on October 7, 1995 and that issued by the City Civil Registry of Manila on February 3, 1997 would plainly show that neither document attests as a positive fact that there was no marriage celebrated between Veronico B. Tenebro and Hilda B. Villareyes on November 10, 1986. Rather, the documents merely attest that the respective issuing offices have no record of such a marriage. Documentary evidence as to the absence of a record is quite different from documentary evidence as to the absence of a marriage ceremony, or documentary evidence as to the invalidity of the marriage between Tenebro and Villareyes.

The marriage contract presented by the prosecution serves as positive evidence as to the existence of the marriage between Tenebro and Villareyes, which should be given greater credence than documents testifying merely as to absence of any record of the marriage, especially considering that there is absolutely no requirement in the law that a marriage contract needs to be submitted to the civil registrar as a condition precedent for the validity of a marriage. The mere fact that no record of a marriage exists does not invalidate the marriage, provided all requisites for its validity are present.[19] There is no evidence presented by the defense that would indicate that the marriage between Tenebro and Villareyes lacked any requisite for validity, apart from the self-serving testimony of the accused himself. Balanced against this testimony are Villareyes’ letter, Ancajas’ testimony that petitioner informed her of the existence of the valid first marriage, and petitioner’s own conduct, which would all tend to indicate that the first marriage had all the requisites for validity.

Finally, although the accused claims that he took steps to verify the non-existence of the first marriage to Villareyes by requesting his brother to validate such purported non-existence, it is significant to note that the certifications issued by the National Statistics Office and the City Civil Registry of Manila are dated October 7, 1995 and February 3, 1997, respectively. Both documents,

therefore, are dated after the accused’s marriage to his second wife, private respondent in this case.

As such, this Court rules that there was sufficient evidence presented by the prosecution to prove the first and second requisites for the crime of bigamy.

The second tier of petitioner’s defense hinges on the effects of the subsequent judicial declaration[20] of the nullity of the second marriage on the ground of psychological incapacity.

Petitioner argues that this subsequent judicial declaration retroacts to the date of the celebration of the marriage to Ancajas. As such, he argues that, since his marriage to Ancajas was subsequently declared void ab initio, the crime of bigamy was not committed.[21]

This argument is not impressed with merit.

Petitioner makes much of the judicial declaration of the nullity of the second marriage on the ground of psychological incapacity, invoking Article 36 of the Family Code. What petitioner fails to realize is that a declaration of the nullity of the second marriage on the ground of psychological incapacity is of absolutely no moment insofar as the State’s penal laws are concerned.

As a second or subsequent marriage contracted during the subsistence of petitioner’s valid marriage to Villareyes, petitioner’s marriage to Ancajas would be null and void ab initio completely regardless of petitioner’s psychological capacity or incapacity.[22] Since a marriage contracted during the subsistence of a valid marriage is automatically void, the nullity of this second marriage is not per se an argument for the avoidance of criminal liability for bigamy. Pertinently, Article 349 of the Revised Penal Code criminalizes “any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings”. A plain reading of the law, therefore, would indicate that the provision penalizes the mere act of contracting a second or a subsequent marriage during the subsistence of a valid marriage.

Thus, as soon as the second marriage to Ancajas was celebrated on April 10, 1990, during the subsistence of the valid first marriage, the crime ofbigamy had already been consummated. To our mind, there is no cogent reason for distinguishing between a subsequent marriage that is null and void purely because it is a second or subsequent marriage, and a subsequent marriage that is null and void on the ground of psychological incapacity, at least

insofar as criminal liability for bigamy is concerned. The State’s penal laws protecting the institution of marriage are in recognition of the sacrosanct character of this special contract between spouses, and punish an individual’s deliberate disregard of the permanent character of the special bond between spouses, which petitioner has undoubtedly done.

Moreover, the declaration of the nullity of the second marriage on the ground of psychological incapacity is not an indicator that petitioner’s marriage to Ancajas lacks the essential requisites for validity. The requisites for the validity of a marriage are classified by the Family Code into essential (legal capacity of the contracting parties and their consent freely given in the presence of the solemnizing officer)[23] and formal (authority of the solemnizing officer, marriage license, and marriage ceremony wherein the parties personally declare their agreement to marry before the solemnizing officer in the presence of at least two witnesses).[24] Under Article 5 of the Family Code, any male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37[25] and 38[26] may contract marriage.[27]

In this case, all the essential and formal requisites for the validity of marriage were satisfied by petitioner and Ancajas. Both were over eighteen years of age, and they voluntarily contracted the second marriage with the required license before Judge Alfredo B. Perez, Jr. of the City Trial Court of Lapu-lapu City, in the presence of at least two witnesses.

Although the judicial declaration of the nullity of a marriage on the ground of psychological incapacity retroacts to the date of the celebration of the marriage insofar as the vinculum between the spouses is concerned, it is significant to note that said marriage is not without legal effects. Among these effects is that children conceived or born before the judgment of absolute nullity of the marriage shall be considered legitimate.[28] There is therefore a recognition written into the law itself that such a marriage, although void ab initio, may still produce legal consequences. Among these legal consequences is incurring criminal liability for bigamy. To hold otherwise would render the State’s penal laws on bigamy completely nugatory, and allow individuals to deliberately ensure that each marital contract be flawed in some manner, and to thus escape the consequences of contracting multiple marriages, while beguiling throngs of hapless women with the promise of futurity and commitment.

As such, we rule that the third and fourth requisites for the crime of bigamy are present in this case, and affirm the judgment of the Court of Appeals.

As a final point, we note that based on the evidence on record, petitioner contracted marriage a third time, while his marriages to Villareyes and Ancajas

were both still subsisting. Although this is irrelevant in the determination of the accused’s guilt for purposes of this particular case, the act of the accused displays a deliberate disregard for the sanctity of marriage, and the State does not look kindly on such activities. Marriage is a special contract, the key characteristic of which is its permanence. When an individual manifests a deliberate pattern of flouting the foundation of the State’s basic social institution, the State’s criminal laws on bigamy step in.

Under Article 349 of the Revised Penal Code, as amended, the penalty for the crime of bigamy is prision mayor, which has a duration of six (6) years and one (1) day to twelve (12) years. There being neither aggravating nor mitigating circumstance, the same shall be imposed in its medium period. Applying the Indeterminate Sentence Law, petitioner shall be entitled to a minimum term, to be taken from the penalty next lower in degree, i.e., prision correccional which has a duration of six (6) months and one (1) day to six (6) years. Hence, the Court of Appeals correctly affirmed the decision of the trial court which sentenced petitioner to suffer an indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum.

WHEREFORE, in view of all the foregoing, the instant petition for review is DENIED. The assailed decision of the Court of Appeals in CA-G.R. CR No. 21636, convicting petitioner Veronico Tenebro of the crime of Bigamy and sentencing him to suffer the indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum, is AFFIRMED in toto.

SO ORDERED.

SECOND DIVISION

[ G.R. NO. 165842, November 29, 2005 ]

EDUARDO P. MANUEL, PETITIONER, VS. PROMULGATED: PEOPLE OF THE PHILIPPINES, RESPONDENT.

D E C I S I O N

CALLEJO, SR., J.: 

Before us is a petition for review on certiorari of the Decision[1] of the Court of Appeals (CA) in CA-G.R. CR No. 26877, affirming the Decision[2] of the Regional Trial Court (RTC) of Baguio City, Branch 3, convicting Eduardo P. Manuel of bigamy in Criminal Case No. 19562-R.

Eduardo was charged with bigamy in an Information filed on November 7, 2001, the accusatory portion of which reads:That on or about the 22nd day of April, 1996, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused EDUARDO P. MANUEL, being then previously and legally  married to RUBYLUS [GAÑA] and without the said marriage having been legally dissolved, did then and there willfully, unlawfully and feloniously contract a second marriage with TINA GANDALERA-MANUEL, herein complainant, who does not know the existence of the first marriage of said EDUARDO P. MANUEL to Rubylus [Gaña].

CONTRARY TO LAW. [3]

The prosecution adduced evidence that on July 28, 1975, Eduardo was married to Rubylus Gaña before Msgr. Feliciano Santos in Makati, which was then still a municipality of the Province of Rizal.[4]  He met the private complainant Tina B. Gandalera in Dagupan City sometime in January 1996.  She stayed in Bonuan, Dagupan City for two days looking for a friend.  Tina was then 21 years old, a Computer Secretarial student, while Eduardo was 39.  Afterwards, Eduardo went to Baguio City to visit her. Eventually, as one thing led to another, they went to a motel where, despite Tina's resistance, Eduardo succeeded in having his way with her.  Eduardo proposed marriage on several occasions, assuring her that he was single.  Eduardo even brought his parents to Baguio City to meet Tina's parents, and was assured by them that their son was still single.

Tina finally agreed to marry Eduardo sometime in the first week of March 1996.  They were married on April 22, 1996 before Judge Antonio C. Reyes, the

Presiding Judge of the RTC of Baguio City, Branch 61.[5]  It appeared in their marriage contract that Eduardo was "single."

The couple was happy during the first three years of their married life.  Through their joint efforts, they were able to build their home in Cypress Point, Irisan, Baguio City.  However, starting 1999, Manuel started making himself scarce and went to their house only twice or thrice a year.  Tina was jobless, and whenever she asked money from Eduardo, he would slap her.[6]  Sometime in January 2001, Eduardo took all his clothes, left, and did not return.  Worse, he stopped giving financial support.

Sometime in August 2001, Tina became curious and made inquiries from the National Statistics Office (NSO) in Manila where she learned that Eduardo had been previously married.  She secured an NSO-certified copy of the marriage contract.[7]  She was so embarrassed and humiliated when she learned that Eduardo was in fact already married when they exchanged their own vows.[8]

For his part, Eduardo testified that he met Tina sometime in 1995 in a bar where she worked as a Guest Relations Officer (GRO).  He fell in love with her and married her.  He informed Tina of his previous marriage to Rubylus Gaña, but she nevertheless agreed to marry him.  Their marital relationship was in order until this one time when he noticed that she had a "love-bite" on her neck.  He then abandoned her. Eduardo further testified that he declared he was "single" in his marriage contract with Tina because he believed in good faith that his first marriage was invalid.  He did not know that he had to go to court to seek for the nullification of his first marriage before marrying Tina.

Eduardo further claimed that he was only forced to marry his first wife because she threatened to commit suicide unless he did so.  Rubylus was charged with estafa in 1975 and thereafter imprisoned.  He visited her in jail after three months and never saw her again.  He insisted that he married Tina believing that his first marriage was no longer valid because he had not heard from Rubylus for more than 20 years.

After trial, the court rendered judgment on July 2, 2002 finding Eduardo guilty beyond reasonable doubt of bigamy.  He was sentenced to an indeterminate penalty of from six (6) years and ten (10) months, as minimum, to ten (10) years, as maximum, and directed to indemnify the private complainant Tina Gandalera the amount of P200,000.00 by way of moral damages, plus costs of suit.[9]

The trial court ruled that the prosecution was able to prove beyond reasonable doubt all the elements of bigamy under Article 349 of the Revised Penal Code.  It declared that Eduardo's belief, that his first marriage had been dissolved

because of his first wife's 20-year absence, even if true, did not exculpate him from liability for bigamy.  Citing the ruling of this Court in People v. Bitdu,[10] the trial court further ruled that even if the private complainant had known that Eduardo had been previously married, the latter would still be criminally liable for bigamy.

Eduardo appealed the decision to the CA.  He alleged that he was not criminally liable for bigamy because when he married the private complainant, he did so in good faith and without any malicious intent.  He maintained that at the time that he married the private complainant, he was of the honest belief that his first marriage no longer subsisted.  He insisted that conformably to Article 3 of the Revised Penal Code, there must be malice for one to be criminally liable for a felony.  He was not motivated by malice in marrying the private complainant because he did so only out of his overwhelming desire to have a fruitful marriage.  He posited that the trial court should have taken into account Article 390 of the New Civil Code. To support his view, the appellant cited the rulings of this Court in United States v. Peñalosa[11] and Manahan, Jr. v. Court of Appeals.[12]

The Office of the Solicitor General (OSG) averred that Eduardo's defense of good faith and reliance on the Court's ruling in United States v. Enriquez[13]were misplaced; what is applicable is Article 41 of the Family Code, which amended Article 390 of the Civil Code.  Citing the ruling of this Court inRepublic v. Nolasco,[14] the OSG further posited that as provided in Article 41 of the Family Code, there is a need for a judicial declaration of presumptive death of the absent spouse to enable the present spouse to marry.  Even assuming that the first marriage was void, the parties thereto should not be permitted to judge for themselves the nullity of the marriage; the matter should be submitted to the proper court for resolution.  Moreover, the OSG maintained, the private complainant's knowledge of the first marriage would not afford any relief since bigamy is an offense against the State and not just against the private complainant.

However, the OSG agreed with the appellant that the penalty imposed by the trial court was erroneous and sought the affirmance of the decision appealed from with modification.

On June 18, 2004, the CA rendered judgment affirming the decision of the RTC with modification as to the penalty of the accused.  It ruled that the prosecution was able to prove all the elements of bigamy.  Contrary to the contention of the appellant, Article 41 of the Family Code should apply.  Before Manuel could lawfully marry the private complainant, there should have been a judicial declaration of Gaña's presumptive death as the absent spouse.  The appellate

court cited the rulings of this Court in Mercado v. Tan[15] and Domingo v. Court of Appeals[16] to support its ruling.  The dispositive portion of the decision reads:WHEREFORE, in the light of the foregoing, the Decision promulgated on July 31, 2002 is hereby MODIFIED to reflect, as it hereby reflects, that accused-appellant is sentenced to an indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to ten (10) years of prision mayor as maximum. Said Decision is AFFIRMED in all other respects.

SO ORDERED.[17]

Eduardo, now the petitioner, filed the instant petition for review on certiorari, insisting that:

I

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT RULED THAT PETITIONER'S FIRST WIFE CANNOT BE LEGALLY PRESUMED DEAD UNDER ARTICLE 390 OF THE CIVIL CODE AS THERE WAS NO JUDICIAL DECLARATION OF PRESUMPTIVE DEATH AS PROVIDED FOR UNDER ARTICLE 41 OF THE FAMILY CODE.

II

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT AFFIRMED THE AWARD OF PHP200,000.00 AS MORAL DAMAGES AS IT HAS NO BASIS IN FACT AND IN LAW.[18]

The petitioner maintains that the prosecution failed to prove the second element of the felony, i.e., that the marriage has not been legally dissolved or, in case his/her spouse is absent, the absent spouse could not yet be presumed dead under the Civil Code.  He avers that when he married Gandalera in 1996, Gaña had been "absent" for 21 years since 1975; under Article 390 of the Civil Code, she was presumed dead as a matter of law.  He points out that, under the first paragraph of Article 390 of the Civil Code, one who has been absent for seven years, whether or not he/she is still alive, shall be presumed dead for all purposes except for succession, while the second paragraph refers to the rule on legal presumption of death with respect to succession.

The petitioner asserts that the presumptive death of the absent spouse arises by operation of law upon the satisfaction of two requirements: the specified period and the present spouse's reasonable belief that the absentee is dead.  He insists that he was able to prove that he had not heard from his first wife since 1975 and that he had no knowledge of her whereabouts or whether she was still alive; hence, under Article 41 of the Family Code, the presumptive death of Gaña had arisen by operation of law, as the two requirements of Article 390 of the Civil Code are present.  The petitioner concludes that he should thus be acquitted of

the crime of bigamy.

The petitioner insists that except for the period of absences provided for in Article 390 of the Civil Code, the rule therein on legal presumptions remains valid and effective.  Nowhere under Article 390 of the Civil Code does it require that there must first be a judicial declaration of death before the rule on presumptive death would apply.  He further asserts that contrary to the rulings of the trial and appellate courts, the requirement of a judicial declaration of presumptive death under Article 41 of the Family Code is only a requirement for the validity of the subsequent or second marriage.

The petitioner, likewise, avers that the trial court and the CA erred in awarding moral damages in favor of the private complainant.  The private complainant was a "GRO" before he married her, and even knew that he was already married.  He genuinely loved and took care of her and gave her financial support.  He also pointed out that she had an illicit relationship with a lover whom she brought to their house.

In its comment on the petition, the OSG maintains that the decision of the CA affirming the petitioner's conviction is in accord with the law, jurisprudence and the evidence on record.  To bolster its claim, the OSG cited the ruling of this Court in Republic v. Nolasco.[19]

The petition is denied for lack of merit.

Article 349 of the Revised Penal Code, which defines and penalizes bigamy, reads: Art. 349. Bigamy. – The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.The provision was taken from Article 486 of the Spanish Penal Code, to wit: El que contrajere Segundo o ulterior matrimonio sin hallarse legítimamente disuelto el anterior, serà castigado con la pena de prision mayor. xxxThe reason why bigamy is considered a felony is to preserve and ensure the juridical tie of marriage established by law.[20] The phrase "or before the absent spouse had been declared presumptively dead by means of a judgment rendered in the proper proceedings" was incorporated in the Revised Penal Code because the drafters of the law were of the impression that "in consonance with the civil law which provides for the presumption of death after an absence of a number of years, the judicial declaration of presumed death like annulment of marriage should be a justification for bigamy."[21]

For the accused to be held guilty of bigamy, the prosecution is burdened to prove the felony: (a) he/she has been legally married; and   (b) he/she contracts a subsequent marriage without the former marriage having been lawfully dissolved.  The felony is consummated on the celebration of the second marriage or subsequent marriage.[22]  It is essential in the prosecution for bigamy that the alleged second marriage, having all the essential requirements, would be valid were it not for the subsistence of the first marriage.[23]  Viada avers that a third element of the crime is that the second marriage must be entered into with fraudulent intent (intencion fraudulente) which is an essential element of a felony by dolo.[24] On the other hand, Cuello Calon is of the view that there are only two elements of bigamy: (1) the existence of a marriage that has not been lawfully dissolved; and (2) the celebration of a second marriage.  It does not matter whether the first marriage is void or voidable because such marriages have juridical effects until lawfully dissolved by a court of competent jurisdiction.[25]  As the Court ruled in Domingo v. Court of Appeals[26] and Mercado v. Tan,[27] under the Family Code of the Philippines, the judicial declaration of nullity of a previous marriage is a defense.

In his commentary on the Revised Penal Code,  Albert is of the same   view as Viada and declared that there are three (3) elements of bigamy:  (1) an undissolved marriage; (2) a new marriage; and (3) fraudulent intention constituting the felony of the act.[28]  He explained that:... This last element is not stated in Article 349, because it is undoubtedly incorporated in the principle antedating all codes, and, constituting one of the landmarks of our Penal Code, that, where there is no willfulness there is no crime.  There is no willfulness if the subject believes that the former marriage has been dissolved; and this must be supported by very strong evidence, and if this be produced, the act shall be deemed not to constitute a crime.  Thus, a person who contracts a second marriage in the reasonable and well-founded belief that his first wife is dead, because of the many years that have elapsed since he has had any news of her whereabouts, in spite of his endeavors to find her, cannot be deemed guilty of the crime of bigamy, because there is no fraudulent intent which is one of the essential elements of the crime.[29]

As gleaned from the Information in the RTC, the petitioner is charged with bigamy, a felony by dolo (deceit).  Article 3, paragraph 2 of the Revised Penal Code provides that there is deceit when the act is performed with deliberate intent. Indeed, a felony cannot exist without intent. Since a felony by dolo is classified as an intentional felony, it is deemed voluntary.[30]  Although the words "with malice" do not appear in Article 3 of the Revised Penal Code, such phrase is included in the word "voluntary."[31]

Malice is a mental state or condition prompting the doing of an overt act without

legal excuse or justification from which another suffers injury.[32]  When the act or omission defined by law as a felony is proved to have been done or committed by the accused, the law presumes it to have been intentional.[33]  Indeed, it is a legal presumption of law that every man intends the natural or probable consequence of his voluntary act in the absence of proof to the contrary, and such presumption must prevail unless a reasonable doubt exists from a consideration of the whole evidence.[34]

For one to be criminally liable for a felony by dolo, there must be a confluence of both an evil act and an evil intent.  Actus non facit reum, nisi mens sit rea.[35]

In the present case, the prosecution proved that the petitioner was married to Gaña in 1975, and such marriage was not judicially declared a nullity; hence, the marriage is presumed to subsist.[36]  The prosecution also proved that the petitioner married the private complainant in 1996, long after the effectivity of the Family Code.

The petitioner is presumed to have acted with malice or evil intent when he married the private complainant.  As a general rule, mistake of fact or good faith of the accused is a valid defense in a prosecution for a felony by dolo; such defense negates malice or criminal intent.  However, ignorance of the law is not an excuse because everyone is presumed to know the law.  Ignorantia legis neminem excusat.

It was the burden of the petitioner to prove his defense that when he married the private complainant in 1996, he was of the well-grounded belief that his first wife was already dead, as he had not heard from her for more than 20 years since 1975.  He should have adduced in evidence a decision of a competent court declaring the presumptive death of his first wife as required by Article 349 of the Revised Penal Code, in relation to Article 41 of the Family Code.  Such judicial declaration also constitutes proof that the petitioner acted in good faith, and would negate criminal intent on his part when he married the private complainant and, as a consequence, he could not be held guilty of bigamy in such case.  The petitioner, however, failed to discharge his burden.

The phrase "or before the absent spouse has been declared presumptively dead by means of a judgment rendered on the proceedings" in Article 349 of the Revised Penal Code was not an aggroupment of empty or useless words.  The requirement for a judgment of the presumptive death of the absent spouse is for the benefit of the spouse present, as protection from the pains and the consequences of a second marriage, precisely because he/she could be charged and convicted of bigamy if the defense of good faith based on mere testimony is found incredible.

The requirement of judicial declaration is also for the benefit of the State.  Under Article II, Section 12 of the Constitution, the "State shall protect and strengthen the family as a basic autonomous social institution."  Marriage is a social institution of the highest importance.  Public policy, good morals and the interest of society require that the marital relation should be surrounded with every safeguard and its severance only in the manner prescribed and the causes specified by law.[37]  The laws regulating civil marriages are necessary to serve the interest, safety, good order, comfort or general welfare of the community and the parties can waive nothing essential to the validity of the proceedings.  A civil marriage anchors an ordered society by encouraging stable relationships over transient ones; it enhances the welfare of the community.

In a real sense, there are three parties to every civil marriage; two willing spouses and an approving State.  On marriage, the parties assume new relations to each other and the State touching nearly on every aspect of life and death.  The consequences of an invalid marriage to the parties, to innocent parties and to society, are so serious that the law may well take means calculated to ensure the procurement of the most positive evidence of death of the first spouse or of the presumptive death of the absent spouse[38] after the lapse of the period provided for under the law.  One such means is the requirement of the declaration by a competent court of the presumptive death of an absent spouse as proof that the present spouse contracts a subsequent marriage on a well-grounded belief of the death of the first spouse.  Indeed, "men readily believe what they wish to be true," is a maxim of the old jurists.  To sustain a second marriage and to vacate a first because one of the parties believed the other to be dead would make the existence of the marital relation determinable, not by certain extrinsic facts, easily capable of forensic ascertainment and proof, but by the subjective condition of individuals.[39] Only with such proof can marriage be treated as so dissolved as to permit second marriages.[40]  Thus, Article 349 of the Revised Penal Code has made the dissolution of marriage dependent not only upon the personal belief of parties, but upon certain objective facts easily capable of accurate judicial cognizance,[41] namely, a judgment of the presumptive death of the absent spouse.

The petitioner's sole reliance on Article 390 of the Civil Code as basis for his acquittal for bigamy is misplaced.

Articles 390 and 391 of the Civil Code provide – Art. 390.  After an absence of seven years, it being unknown whether or not, the absentee still lives, he shall be presumed dead for all purposes, except for those of succession.

The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years.  If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened.

Art. 391.  The following shall be presumed dead for all purposes, including the division of the estate among the heirs:  

(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane;

(2) A person in the armed forces who has taken part in war, and has been missing for four years;(3) A person who has been in danger of death under other circumstances and his existence has not

been known for four years.

The presumption of death of the spouse who had been absent for seven years, it being unknown whether or not the absentee still lives, is created by law and arises without any necessity of judicial declaration.[42]   However, Article 41 of the Family Code, which amended the foregoing rules on presumptive death, reads:Art. 41.  A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead.  In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Court for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.[43]

With the effectivity of the Family Code,[44] the period of seven years under the first paragraph of Article 390 of the Civil Code was reduced to four consecutive years.  Thus, before the spouse present may contract a subsequent marriage, he or she must institute summary proceedings for the declaration of the presumptive death of the absentee spouse,[45] without prejudice to the effect of the reappearance of the absentee spouse.  As explained by this Court in Armas v. Calisterio:[46]

In contrast, under the 1988 Family Code, in order that a subsequent bigamous marriage may exceptionally be considered valid, the following conditions must concur, viz.: (a) The prior spouse of the contracting party must have been absent for four consecutive years, or two years where there is danger of death under the circumstances stated in Article 391 of the Civil Code at the time of disappearance; (b) the spouse present has a well-founded belief that the absent spouse is already dead; and (c) there is, unlike the old rule, a judicial declaration of presumptive death of the absentee for which purpose the spouse present can

institute a summary proceeding in court to ask for that declaration.  The last condition is consistent and in consonance with the requirement of judicial intervention in subsequent marriages as so provided in Article 41, in relation to Article 40, of the Family Code.The Court rejects petitioner's contention that the requirement of instituting a petition for declaration of presumptive death under Article 41 of the Family Code is designed merely to enable the spouse present to contract a valid second marriage and not for the acquittal of one charged with bigamy.  Such provision was designed to harmonize civil law and Article 349 of the Revised Penal Code, and put to rest the confusion spawned by the rulings of this Court and comments of eminent authorities on Criminal Law.

As early as March 6, 1937, this Court ruled in Jones v. Hortiguela[47] that, for purposes of the marriage law, it is not necessary to have the former spouse judicially declared an absentee before the spouse present may contract a subsequent marriage.  It held that the declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose the taking of the necessary precautions for the administration of the estate of the absentee.  For the celebration of civil marriage, however, the law only requires that the former spouse had been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage.[48]  In In Re Szatraw,[49] the Court declared that a judicial declaration that a person is presumptively dead, because he or she had been unheard from in seven years, being a presumption juris tantum only, subject to contrary proof, cannot reach the stage of finality or become final; and that proof of actual death of the person presumed dead being unheard from in seven years, would have to be made in another proceeding to have such particular fact finally determined.  The Court ruled that if a judicial decree declaring a person presumptively dead because he or she had not been heard from in seven years cannot become final and executory even after the lapse of the reglementary period within which an appeal may be taken, for such presumption is still disputable and remains subject to contrary proof, then a petition for such a declaration is useless, unnecessary, superfluous and of no benefit to the petitioner.  The Court stated that it should not waste its valuable time and be made to perform a superfluous and meaningless act.[50]  The Court also took note that a petition for a declaration of the presumptive death of an absent spouse may even be made in collusion with the other spouse.

In Lukban v. Republic of the Philippines,[51] the Court declared that the words "proper proceedings" in Article 349 of the Revised Penal Code can only refer to those authorized by law such as Articles 390 and 391 of the Civil Code which

refer to the administration or settlement of the estate of a deceased person.  In Gue v. Republic of the Philippines,[52] the Court rejected the contention of the petitioner therein that, under Article 390 of the Civil Code, the courts are authorized to declare the presumptive death of a person after an absence of seven years.  The Court reiterated its rulings in Szatraw, Lukbanand Jones.

Former Chief Justice Ramon C. Aquino was of the view that "the provision of Article 349 or "before the absent spouse has been declared presumptively dead by means of a judgment reached in the proper proceedings" is erroneous and should be considered as not written.  He opined that such provision presupposes that, if the prior marriage has not been legally dissolved and the absent first spouse has not been declared presumptively dead in a proper court proceedings, the subsequent marriage is bigamous.  He maintains that the supposition is not true.[53]  A second marriage is bigamous only when the circumstances in paragraphs 1 and 2 of Article 83 of the Civil Code are not present.[54] Former Senator Ambrosio Padilla was, likewise, of the view that Article 349 seems to require judicial decree of dissolution or judicial declaration of absence but even with such decree, a second marriage in good faith will not constitute bigamy.  He posits that a second marriage, if not illegal, even if it be annullable, should not give rise to bigamy.[55]  Former Justice Luis B. Reyes, on the other hand, was of the view that in the case of an absent spouse who could not yet be presumed dead according to the Civil Code, the spouse present cannot be charged and convicted of bigamy in case he/she contracts a second marriage.[56]

The Committee tasked to prepare the Family Code proposed the amendments of Articles 390 and 391 of the Civil Code to conform to Article 349 of the Revised Penal Code, in that, in a case where a spouse is absent for the requisite period, the present spouse may contract a subsequent marriage only after securing a judgment declaring the presumptive death of the absent spouse to avoid being charged and convicted of bigamy; the present spouse will have to adduce evidence that he had a well-founded belief that the absent spouse was already dead.[57]  Such judgment is proof of the good faith of the present spouse who contracted a subsequent marriage; thus, even if the present spouse is later charged with bigamy if the absentee spouse reappears, he cannot be convicted of the crime.  As explained by former Justice Alicia Sempio-Diy:... Such rulings, however, conflict with Art. 349 of the Revised Penal Code providing that the present spouse must first ask for a declaration of presumptive death of the absent spouse in order not to be guilty of bigamy in case he or she marries again.

The above Article of the Family Code now clearly provides that for the purpose of the present spouse contracting a second marriage, he or she must file a summary proceeding as provided in the Code for the declaration of the

presumptive death of the absentee, without prejudice to the latter's reappearance. This provision is intended to protect the present spouse from a criminal prosecution for bigamy under Art. 349 of the Revised Penal Code because with the judicial declaration that the missing spouses presumptively dead, the good faith of the present spouse in contracting a second marriage is already established.[58]

Of the same view is former Dean Ernesto L. Pineda (now Undersecretary of Justice) who wrote that things are now clarified.  He says judicial declaration of presumptive death is now authorized for purposes of remarriage.  The present spouse must institute a summary proceeding for declaration of presumptive death of the absentee, where the ordinary rules of procedure in trial will not be followed.  Affidavits will suffice, with possible clarificatory examinations of affiants if the Judge finds it necessary for a full grasp of the facts.  The judgment declaring an absentee as presumptively dead is without prejudice to the effect of reappearance of the said absentee.

Dean Pineda further states that before, the weight of authority is that the clause "before the absent spouse has been declared presumptively dead x x x" should be disregarded because of Article 83, paragraph 3 of the Civil Code.  With the new law, there is a need to institute a summary proceeding for the declaration of the presumptive death of the absentee, otherwise, there is bigamy.[59]

According to Retired Supreme Court Justice Florenz D. Regalado, an eminent authority on Criminal Law, in some cases where an absentee spouse is believed to be dead, there must be a judicial declaration of presumptive death, which could then be made only in the proceedings for the settlement of his estate.[60]  Before such declaration, it was held that the remarriage of the other spouse is bigamous even if done in good faith.[61]  Justice Regalado opined that there were contrary views because of the ruling in Jones and the provisions of Article 83(2) of the Civil Code, which, however, appears to have been set to rest by Article 41 of the Family Code, "which requires a summary hearing for the declaration of presumptive death of the absent spouse before the other spouse can remarry."

Under Article 238 of the Family Code, a petition for a declaration of the presumptive death of an absent spouse under Article 41 of the Family Code may be filed under Articles 239 to 247 of the same Code.[62]

On the second issue, the petitioner, likewise, faults the trial court and the CA for awarding moral damages in favor of the private complainant.  The petitioner maintains that moral damages may be awarded only in any of the cases provided in Article 2219 of the Civil Code, and bigamy is not one of them.  The petitioner asserts that the appellate court failed to apply its ruling in People v. Bondoc,[63] where an award of moral damages for bigamy was disallowed. In any case,

the petitioner maintains, the private complainant failed to adduce evidence to prove moral damages.

The appellate court awarded moral damages to the private complainant on its finding that she adduced evidence to prove the same.  The appellate court ruled that while bigamy is not included in those cases enumerated in Article 2219 of the Civil Code, it is not proscribed from awarding moral damages against the petitioner.  The appellate court ruled that it is not bound by the following ruling in People v. Bondoc: ... Pero si en dichos asuntos se adjudicaron daños, ello se debió indedublamente porque el articulo 2219 del Código Civil de Filipinas autoriza la adjudicación de daños morales en los delitos de estupro, rapto, violación, adulterio o concubinato, y otros actos lascivos, sin incluir en esta enumeración el delito de bigamia.  No existe, por consiguiente, base legal para adjudicar aquí los daños de P5,000.00 arriba mencionados.[64]

The OSG posits that the findings and ruling of the CA are based on the evidence and the law.  The OSG, likewise, avers that the CA was not bound by its ruling in People v. Rodeo.

The Court rules against the petitioner.

Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury.  Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant's wrongful act or omission.[65]  An award for moral damages requires the confluence of the following conditions: first, there must be an injury, whether physical, mental or psychological, clearly sustained by the claimant; second, there must be culpable act or omission factually established; third, the wrongful act or omission of the defendant is the proximate cause of the injury sustained by the claimant; and  fourth, the award of damages is predicated on any of the cases stated in Article 2219 or Article 2220 of the Civil Code.[66]

Moral damages may be awarded in favor of the offended party only in criminal cases enumerated in Article 2219, paragraphs 1, 3, 4, 5 and 7 of the Civil Code and analogous cases, viz.:Art. 2219.  Moral damages may be recovered in the following and analogous cases.

(1) A criminal offense resulting in physical injuries;(2) Quasi-delicts causing physical injuries;(3) Seduction, abduction, rape, or other lascivious acts;(4) Adultery or concubinage;

(5) Illegal or arbitrary detention or arrest;(6) Illegal search;(7) Libel, slander or any other form of defamation;(8) Malicious prosecution;(9) Acts mentioned in article 309;(10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34 and 35.

The   parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of this article, may also recover moral damages.

The spouse, descendants, ascendants, and brothers and sisters may bring the action mentioned in No. 9 of this article in the order named.Thus, the law does not intend that moral damages should be awarded in all cases where the aggrieved party has suffered mental anguish, fright, moral anxieties, besmirched reputation, wounded feelings, moral shock, social humiliation and similar injury arising out of an act or omission of  another, otherwise, there would not have been any reason for the inclusion of specific acts in Article 2219[67] and analogous cases (which refer to those cases bearing analogy or resemblance, corresponds to some others or resembling, in other respects, as in form, proportion, relation, etc.)[68]

Indeed, bigamy is not one of those specifically mentioned in Article 2219 of the Civil Code in which the offender may be ordered to pay moral damages to the private complainant/offended party.  Nevertheless, the petitioner is liable to the private complainant for moral damages under Article 2219 in relation to Articles 19, 20 and 21 of the Civil Code.

According to Article 19, "every person must, in the exercise of his rights and in the performance of his act with justice, give everyone his due, and observe honesty and good faith." This provision contains what is commonly referred to as the principle of abuse of rights, and sets certain standards which must be observed not only in the exercise of one's rights but also in the performance of one's duties.  The standards are the following: act with justice; give everyone his due; and observe honesty and good faith.  The elements for abuse of rights are: (a) there is a legal right or duty;  (b) exercised in bad faith; and (c) for the sole intent of prejudicing or injuring another.[69]

Article 20 speaks of the general sanctions of all other provisions of law which do not especially provide for its own sanction.  When a right is exercised in a manner which does not conform to the standards set forth in the said provision and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be responsible.[70]  If the provision does not provide a remedy for its violation, an action for damages under either Article 20 or Article

21 of the Civil Code would be proper.  Article 20 provides that "every person who, contrary to law, willfully or negligently causes damage to another shall indemnify the latter for the same."  On the other hand, Article 21 provides that "any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for damages."  The latter provision is adopted to remedy "the countless gaps in the statutes which leave so many victims of moral wrongs helpless, even though they have actually suffered material and moral injury should vouchsafe adequate legal remedy for that untold number of moral wrongs which it is impossible for human foresight to prove for specifically in the statutes."  Whether or not the principle of abuse of rights has been violated resulting in damages under Article 20 or Article 21 of the Civil Code or other applicable provisions of law depends upon the circumstances of each case.[71]

In the present case, the petitioner courted the private complainant and proposed to marry her.  He assured her that he was single.  He even brought his parents to the house of the private complainant where he and his parents made the same assurance – that he was single.  Thus, the private complainant agreed to marry the petitioner, who even stated in the certificate of marriage that he was single.  She lived with the petitioner and dutifully performed her duties as his wife, believing all the while that he was her lawful husband. For two years or so until the petitioner heartlessly abandoned her, the private complainant had no inkling that he was already married to another before they were married.

Thus, the private complainant was an innocent victim of the petitioner's chicanery and heartless deception, the fraud consisting not of a single act alone, but a continuous series of acts.  Day by day, he maintained the appearance of being a lawful husband to the private complainant, who changed her status from a single woman to a married woman, lost the consortium, attributes and support of a single man she could have married lawfully and endured mental pain and humiliation, being bound to a man who it turned out was not her lawful husband.[72]

The Court rules that the petitioner's collective acts of fraud and deceit before, during and after his marriage with the private complainant were willful, deliberate and with malice and caused injury to the latter.  That she did not sustain any physical injuries is not a bar to an award for moral damages.  Indeed, in Morris v. Macnab,[73] the New Jersey Supreme Court ruled:xxx The defendant cites authorities which indicate that, absent physical injuries, damages for shame, humiliation, and mental anguish are not recoverable where the actor is simply negligent.  See Prosser, supra, at p. 180; 2 Harper & James, Torts, 1031 (1956).  But the authorities all recognize that where the wrong is willful rather than negligent, recovery may be had for the ordinary, natural, and

proximate consequences though they consist of shame, humiliation, and mental anguish.  See Spiegel v. Evergreen Cemetery Co., 117 NJL 90, 94, 186 A 585 (Sup. Ct. 1936); Kuzma v. Millinery Workers, etc., Local 24, 27 N.J. Super, 579, 591, 99 A.2d 833 (App. Div. 1953); Prosser, supra, at p. 38.  Here the defendant's conduct was not merely negligent, but was willfully and maliciously wrongful.  It was bound to result in shame, humiliation, and mental anguish for the plaintiff, and when such result did ensue the plaintiff became entitled not only to compensatory but also to punitive damages.  See Spiegel v. Evergreen Cemetery Co., supra; Kuzma v Millinery Workers, etc., Local 24, supra. CF. Note, "Exemplary Damages in the Law of Torts," 70 Harv. L. Rev. 517 (1957).  The plaintiff testified that because of the defendant's bigamous marriage to her and the attendant publicity she not only was embarrassed and "ashamed to go out" but "couldn't sleep" but "couldn't eat," had terrific headaches" and "lost quite a lot of weight."  No just basis appears for judicial interference with the jury's reasonable allowance of $1,000 punitive damages on the first count.  See Cabakov v. Thatcher, 37 N.J. Super 249, 117 A.2d 298 (App. Div.[74] 1955).The Court thus declares that the petitioner's acts are against public policy as they undermine and subvert the family as a social institution, good morals and the interest and general welfare of society.

Because the private complainant was an innocent victim of the petitioner's perfidy, she is not barred from claiming moral damages.  Besides, even considerations of public policy would not prevent her from recovery.  As held in Jekshewitz v. Groswald:[75]

Where a person is induced by the fraudulent representation of another to do an act which, in consequence of such misrepresentation, he believes to be neither illegal nor immoral, but which is in fact a criminal offense, he has a right of action against the person so inducing him for damages sustained by him in consequence of his having done such act.  Burrows v. Rhodes, [1899] 1 Q.B. 816.  In Cooper v. Cooper, 147 Mass. 370, 17 N.E. 892, 9 Am. St. Rep. 721, the court said that a false representation by the defendant that he was divorced from his former wife, whereby the plaintiff was induced to marry him, gave her a remedy in tort for deceit.  It seems to have been assumed that the fact that she had unintentionally violated the law or innocently committed a crime by cohabiting with him would be no bar to the action, but rather that it might be a ground for enhancing her damages.  The injury to the plaintiff was said to be in her being led by the promise to give the fellowship and assistance of a wife to one who was not her husband and to assume and act in a relation and condition that proved to be false and ignominious.  Damages for such an injury were held to be recoverable in Sherman v. Rawson, 102 Mass. 395 and Kelley v. Riley, 106 Mass. 339, 343, 8 Am. Rep. 336.

Furthermore, in the case at bar the plaintiff does not base her cause of action

upon any transgression of the law by herself but upon the defendant's misrepresentation.  The criminal relations which followed, innocently on her part, were but one of the incidental results of the defendant's fraud for which damages may be assessed.

[7] Actions for deceit for fraudulently inducing a woman to enter into the marriage relation have been maintained in other jurisdictions.  Sears v. Wegner, 150 Mich. 388, 114 N.W. 224, 17 L.R. A. (N.S.) 819; Larson v. McMillan, 99 Wash. 626, 170 P. 324; Blossom v. Barrett, 37 N.Y. 434, 97 Am. Dec. 747; Morril v. Palmer, 68 Vt. 1, 33 A. 829, 33 L.R.A. 411.  Considerations of public policy would not prevent recovery where the circumstances are such that the plaintiff was conscious of no moral turpitude, that her illegal action was induced solely by the defendant's misrepresentation, and that she does not base her cause of action upon any transgression of the law by herself.  Such considerations distinguish this case from cases in which the court has refused to lend its aid to the enforcement of a contract illegal on its face or to one who has consciously and voluntarily become a party to an illegal act upon which the cause of action is founded.  Szadiwicz v. Cantor, 257 Mass. 518, 520, 154 N.E. 251, 49 A. L. R. 958.[76]

Considering the attendant circumstances of the case, the Court finds the award of P200,000.00 for moral damages to be just and reasonable.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED.  The assailed decision of the Court of Appeals is AFFIRMED.  Costs against the petitioner.

SO ORDERED.

FIRST DIVISION

[ G.R. No. 109454, June 14, 1994 ]

JOSE C. SERMONIA, PETITIONER, VS. HON. COURT OF APPEALS, ELEVENTH DIVISION, HON. DEOGRACIAS

FELIZARDO, PRESIDING JUDGE, REGIONAL TRIAL COURT OF PASIG, BR. 151, AND JOSEPH SINSAY,

RESPONDENTS. 

D E C I S I O N

BELLOSILLO, J.: 

Bigamy is an illegal marriage committed by contracting a second or subsequent marriage before the first marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.[1] Bigamy carries with it the imposable penalty of prision mayor. Being punishable by an afflictive penalty, this crime prescribes in fifteen (15) years.[2] The fifteen-year prescriptive period commences to run from the day on which the crime is discovered by the offended party, the authorities, or their agents x x x x"[3]

That petitioner contracted a bigamous marriage seems impliedly admitted.[4] At least, it is not expressly denied. Thus the only issue for resolution is whether his prosecution for bigamy is already time-barred, which hinges on whether its discovery is deemed to have taken place from the time the offended party actually knew of the second marriage or from the time the document evidencing the subsequent marriage was registered with the Civil Registry consistent with the rule on constructive notice.

The antecedents: In an information filed on 26 May 1992, petitioner Jose C. Sermonia was charged with bigamy before the Regional Trial Court of Pasig, Br. 151, for contracting marriage with Ma. Lourdes Unson on 15 February 1975 while his prior marriage to Virginia C. Nievera remained valid and subsisting. [5]

Petitioner moved to quash the information on the ground that his criminal liability for bigamy has been extinguished by prescription.

In the order of 1 October 1992, respondent judge denied the motion to quash. On 27 October 1992, he likewise denied the motion to reconsider his order of denial.

Petitioner challenged the above orders before the Court of Appeals through a petition for certiorari and prohibition. In the assailed decision of 21 January 1993, his petition was dismissed for lack of merit.[6]

In this recourse, petitioner contends that his criminal liability for bigamy has been obliterated by prescription. He avers that since the second marriage contract was duly registered with the Office of the Civil Registrar in 1975,[7] such fact of registration makes it a matter of public record and thus constitutes notice to the whole world. The offended party therefore is considered to have had constructive notice of the subsequent marriage as of 1975; hence, prescription commenced to run on the day the marriage contract was registered. For this reason, the corresponding information for bigamy should have been filed on or before 1990 and not only in 1992.

Petitioner likewise takes issue with the "alleged concealment of the bigamous marriage" as declared by the appellate court, insisting that the second marriage was publicly held at Our Lady of Nativity Church in Marikina on 15 February 1975, and adding for good measure that from the moment of registration the marriage contract was open to inspection by any interested person.

On the other hand, the prosecution maintains that the prescriptive period does not begin from the commission of the crime but from the time of discovery by complainant which was in July 1991.

While we concede the point that the rule on constructive notice in civil cases may be applied in criminal actions if the factual and legal circumstances so warrant,[8] we agree with the view expounded by the Court of Appeals that it cannot apply in the crime of bigamy notwithstanding the possibility of its being more favorable to the accused. The appellate court succinctly explains -

Argued by the petitioner is that the principle of constructive notice should be applied in the case at bar, principally citing in support of his stand, the cases of People v. Reyes (175 SCRA 597); and People v. Dinsay (40 SCRA 50).This Court is of the view that the principle of constructive notice should not be applied in regard to the crime of bigamy as judicial notice may be taken of the fact that a bigamous marriage is generally entered into by the offender in secrecy from the spouse of the previous subsisting marriage. Also, a bigamous marriage is generally entered into in a place where the offender is not known to be still a married person, in order to conceal his legal impediment to contract another marriage.In the case of real property, the registration of any transaction involving any right or interest therein is made in the Register of Deeds of the place where the said property is located. Verification in the office of the Register of Deeds concerned of the transactions involving the said property can easily be made by any interested party. In the case of a bigamous marriage, verification by the offended person or the authorities of the same would indeed be quite difficult as such a

marriage may be entered into in a place where the offender is not known to be still a married person.Be it noted that in the criminal cases cited by the petitioner wherein constructive notice was applied, involved therein were land or property disputes and certainly, marriage is not property.The non-application to the crime of bigamy of the principle of constructive notice is not contrary to the well entrenched policy that penal laws should be construed liberally in favor of the accused. To compute the prescriptive period for the offense of bigamy from registration thereof would amount to almost absolving the offenders thereof for liability therefor. While the celebration of the bigamous marriage may be said to be open and made of public record by its registration, the offender however is not truthful as he conceals from the officiating authority and those concerned the existence of his previous subsisting marriage. He does not reveal to them that he is still a married person. He likewise conceals from his legitimate spouse his bigamous marriage. And for these, he contracts the bigamous marriage in a place where he is not known to be still a married person. And such a place may be anywhere, under which circumstance, the discovery of the bigamous marriage is rendered quite difficult and would take time. It is therefore reasonable that the prescriptive period for the crime of bigamy should be counted only from the day on which the said crime was discovered by the offended party, the authorities or their agency (sic).Considering such concealment of the bigamous marriage by the offender, if the prescriptive period for the offense of bigamy were to be counted from the date of registration thereof, the prosecution of the violators of the said offense would almost be impossible. The interpretation urged by the petitioner would encourage fearless violations of a social institution cherished and protected by law.[9]

To this we may also add that the rule on constructive notice will make de rigueur the routinary inspection or verification of the marriages listed in the National Census Office and in various local civil registries all over the country to make certain that no second or even third marriage has been contracted without the knowledge of the legitimate spouse. This is too formidable a task to even contemplate.

More importantly, while Sec. 52 of P.D. 1529 (Property Registration Decree) provides for constructive notice to all persons of every conveyance, mortgage, lease, lien, attachment, order, judgment, instrument or entry affecting registered land filed or entered in the office of the Register of Deeds for the province or city where the land to which it relates lies from the time of such registering, filing or entering, there is no counterpart provision either in Act No. 3753 (Act to Establish a Civil Register) or in Arts. 407 to 413 of the Civil Code, which leads us to the

conclusion that there is no legal basis for applying the constructive notice rule to the documents registered in the Civil Register.

Finally, petitioner would want us to believe that there was no concealment at all because his marriage contract with Ms. Unson was recorded in the Civil Registry which is open to all and sundry for inspection. We cannot go along with his argument because why did he indicate in the marriage contract that he was "single" thus obviously hiding his true status as a married man? Or for that matter, why did he not simply tell his first wife about the subsequent marriage in Marikina so that everything would be out in the open. The answer is obvious: He knew that no priest or minister would knowingly perform or authorize a bigamous marriage as this would subject him to punishment under the Marriage Law.[10] Obviously, petitioner had no intention of revealing his duplicity to his first spouse and gambled instead on the probability that she or any third party would ever go to the local civil registrar to inquire. In the meantime, through the simple expedience of having the second marriage recorded in the local civil registry, he has set into motion the running of the fifteen-year prescriptive period against the unwary and the unsuspecting victim of his philandering.

Were we to put our imprimatur to the theory advanced by petitioner, in all likelihood we would be playing right into the hands of philanderers. For we would be equating the contract of marriage with ordinary deeds of conveyance and other similar documents without due regard for the stability of marriage as an inviolable social institution, the preservation of which is a primary concern of our society.

WHEREFORE, finding no reversible error in the questioned decision of the Court of Appeals, the same is AFFIRMED.

SO ORDERED.

FIRST DIVISION

[ G.R. No. 183824, December 08, 2010 ]

MYRNA P. ANTONE, PETITIONER, VS. LEO R. BERONILLA, RESPONDENT.

D E C I S I O N

PEREZ, J.: 

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to nullify and set aside the issuances of the Court of Appeals in CA-G.R. SP No. 102834, to wit: (a) the Resolution[1] dated 29 April 2008 dismissing the petition for certiorari under Rule 65, which assailed the trial court's Orders[2] dated 20 September 2007 and 6 December 2007 in Criminal Case No. 07-0907-CFM for Bigamy; and (b) the Resolution[3] dated 18 July 2008 denying the motion for reconsideration of the first resolution.

The trial court quashed the Information on the ground that the elements of Bigamy were rendered incomplete after herein respondent presented documents to prove a fact, which the court believed would negate the allegation in the Information that there was a first valid marriage. The evidence presented showed that respondent later obtained a judicial declaration of nullity of the first union following the celebration of a subsequent marriage.

The Antecedents

On 12 March 2007, herein petitioner Myrna P. Antone executed an Affidavit-Complaint[4] for Bigamy against Leo R. Beronilla before the Office of the City Prosecutor of Pasay City.  She alleged that her marriage with respondent in 1978 had not yet been legally dissolved when the latter contracted a second marriage with one Cecile Maguillo in 1991.

On 21 June 2007, the prosecution filed the corresponding Information[5] before the Regional Trial Court, Pasay City. The case was docketed as Criminal Case No. 07-0907-CFM and raffled to Branch 115.

Pending the setting of the case for arraignment, herein respondent moved to quash the Information on the ground that the facts charged do not constitute an offense.[6]  He informed the court that his marriage with petitioner was declared null and void by the Regional Trial Court, Branch 16, Naval, Biliran on 26 April 2007;[7] that the decision became final and executory on 15 May 200[7];[8] and that such decree has already been registered with the Municipal Civil Registrar on 12 June 2007.[9]  He argued that since the marriage had been declared null and void from the beginning, there was actually no first marriage to speak of.  Absent a first valid marriage, the facts alleged in the Information do not constitute the crime of bigamy.[10]

In its comment/opposition to the motion,[11] the prosecution, through herein petitioner, maintained that the respondent committed an act which has all the essential requisites of bigamy.  The prosecution pointed out that the marriage of petitioner and respondent on 18 November 1978 has not yet been severed when he contracted a second marriage on 16 February 1991, for which reason, bigamy has already been committed before the court declared the first marriage null and void on 27 April 2007.[12]  The prosecution also invoked the rulings of the Supreme Court holding that a motion to quash is a hypothetical admission of the facts alleged in the information, and that facts contrary thereto are matters of defense which may be raised only during the presentation of evidence.[13]

After a hearing on the motion,[14] the court quashed the Information.[15]  Applying Morigo v. People,[16] it ruled:

Hence, contrary to what was stated in the Information, accused Beronilla was actually never legally married to Myrna Antone.  On this score alone, the first element appears to be missing.  Furthermore, the statement in the definition of Bigamy which reads "before the first marriage has been legally dissolved" clearly contemplates that the first marriage must at least be annullable or voidable but definitely not void, as in this case.  xxx [I]n a similar case, [the Supreme Court] had the occasion to state:

The first element of bigamy as a crime requires that the accused must have been legally married.  But in this case, legally speaking, the petitioner was never married to Lucia Barrete.  Thus, there is no first marriage to speak of.  Under the principle of retroactivity of a marriage being declared void ab initio, the two were never married "from the beginning." xxx The existence and the validity of the first marriage being an essential element of the crime of bigamy, it is but logical that a conviction for said offense cannot be sustained where there is no first marriage to speak of.  xxx[17]

The prosecution, through herein petitioner, moved for reconsideration of  the said Order[18] on the ground, among others, that the facts and the attending circumstances in Morigo are not on all fours with the case at bar.  It likewise pointed out that, in Mercado v. Tan,[19] this Court has already settled that "(a) declaration of the absolute nullity of a marriage is now explicitly required either as a cause of action or a ground for defense."[20]

In its Order of 6 December 2007,[21] the court denied the motion for reconsideration stating that Mercado has already been superseded by Morigo.

In the interim, in a Petition for Relief from Judgment[22] before the Regional Trial Court of Naval, Biliran, petitioner questioned the validity of the proceedings in the petition for the declaration of nullity of marriage in Civil Case No. B-1290 on 5 October 2007.  On 24 March 2008, the court set aside its Decision of 26 April 2007 declaring the marriage of petitioner with respondent null and void, and required herein petitioner (respondent in Civil Case No. B-1290) to file her "answer to the complaint."[23]  On 21 July 2008, the court DISMISSED the petition for nullity of marriage for failure of herein respondent (plaintiff in Civil Case No. B-1290) to submit his pre-trial brief.[24]  Respondent, however, challenged the orders issued by the court before the Court of Appeals.[25]  The matter is still pending resolution thereat.[26]

Meanwhile, in a petition for certiorari under Rule 65 of the Rules of Court filed on 26 March 2008 before the Court of Appeals,[27] herein petitioner alleged that the Pasay City trial court acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction when it dismissed the case of bigamy and denied her motion for reconsideration.

In its Resolution of 29 April 2008, the Court of Appeals dismissed the petition stating that:

The present petition xxx is fatally infirm in form and substance for the following reasons:

1. The verification is defective as it does not include the assurance that the allegations in the petition are based on authentic records.

2.  Since the petition assails the trial court's dismissal of the criminal information for bigamy filed against private respondent Leo Beronilla, the petition, if at all warranted, should be filed in behalf of the People of the Philippines by the Office of the Solicitor General, being its statutory counsel in all appealed criminal cases.

3.  There is a violation of the rule on double jeopardy as the dismissal of the subject criminal case is tantamount to an acquittal based on the trial court's finding that the first essential element of bigamy, which is a first valid marriage contracted by private respondent is wanting.  There is no clear showing in the petition that the dismissal was tainted with arbitrariness which violated petitioner's right to due process. Notably, petitioner filed her comment/opposition to private respondent's motion to quash before the trial court issued its Order dated September 20, 2007 dismissing the information.  Hence, if there is no denial of due process, there can be no grave abuse of discretion that would merit the application of the exception to the double jeopardy rule. [28]

On 18 July 2008, the Court of Appeals denied respondent's Motion for Reconsideration of the aforequoted Resolution for lack of merit. [29]

Hence, this petition.[30]

Our Ruling

I

We are convinced that this petition should be given due course despite the defect in the pleading and the question of legal standing to bring the action.

The Rules of Court provides that a pleading required to be verified which lacks a proper verification shall be treated as unsigned pleading.[31]

This, notwithstanding, we have, in a number of cases, opted to relax the rule in order that the ends of justice may be served.[32] The defect being merely formal and not jurisdictional, we ruled that the court may nevertheless order the correction of the pleading, or even act on the pleading "if the attending circumstances are such that xxx strict compliance with the rule may be dispensed with in order that the ends of justice xxx may be served."[33] At any rate, a pleading is required to be verified only to ensure that it was prepared in good faith, and that the allegations were true and correct and not based on mere speculations.[34]

There is likewise no dispute that it is the Office of the Solicitor General (OSG) which has the authority to represent the government in a judicial proceeding before the Court of Appeals.  The Administrative Code specifically defined its powers and functions to read, among others:

Sec. 35.  Powers and Functions. -  The Office of the Solicitor General shall represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of lawyers. xxx It shall have the following specific powers and functions:

(1)Represent the Government in the Supreme Court and the Court of Appeals in all criminal proceedings; represent the Government and its officers in the Supreme Court, Court of Appeals, and all other courts or tribunals in all civil actions and special proceedings in which the Government or any officer thereof in his official capacity is a party.[35]

As an exception to this rule, the Solicitor General is allowed to:

(8) Deputize legal officers of government departments, bureaus, agencies and offices to assist the Solicitor General and appear or represent the Government in cases involving their respective offices, brought before the courts and exercise supervision and control over such legal officers with respect to such cases.[36]

Thus, in Republic v. Partisala,[37] we held that the summary dismissal of an action in the name of the Republic of the Philippines, when not initiated by the Solicitor General, is in order.[38]  Not even the appearance of the conformity of the public prosecutor in a petition for certiorari would suffice because the authority of the City Prosecutor or his assistant to represent the People of the Philippines is limited to the proceedings in the trial court.[39]

We took exceptions, however, and gave due course to a number of actions even when the respective interests of the government were not properly represented by the Office of the Solicitor General.

In Labaro v. Panay,[40] this Court dealt with a similar defect in the following manner:

It must, however, be stressed that if the public prosecution is aggrieved by any order or ruling of the trial judge in a criminal case, the OSG, and not the prosecutor, must be the one to question the order or ruling before us.[41]  xxx

Nevertheless, since the challenged order affects the interest of the State or the plaintiff People of the Philippines, we opted not to dismiss the petition on this technical ground.  Instead, we required the OSG to comment on the petition, as we had done before in some cases.[42]  In light of its Comment, we rule that the OSG has ratified and adopted as its own the instant petition for the People of the Philippines. (Emphasis supplied.)

In Cooperative Development Authority v. Dolefil Agrarian Reform Beneficiaries Cooperative, Inc.,[43] without requiring the Office of the Solicitor General to file a comment on the petition, this Court determined the merits of the case involving a novel issue on the nature and scope of jurisdiction of theCooperative Development Authority to settle cooperative disputes as well as the battle between two (2) factions concerning the management of the Dolefil Agrarian Reform Beneficiaries Cooperative, Inc. (DARBCI) "that inevitably threatens the very existence of one of the country's major cooperatives."[44]

And, lest we defeat the ends of justice, we opt to look into the merit of the

instant petition even absent the imprimatur of the Solicitor General. After all, "for justice to prevail, the scales must balance, for justice is not to be dispensed for the accused alone."[45] To borrow the words of then Justice Minita V. Chico-Nazario in another case where the dismissal of a criminal case pending with the trial court was sought:

[T]he task of the pillars of the criminal justice system is to preserve our democratic society under the rule of law, ensuring that all those who [come or are brought to court] are afforded a fair opportunity to present their side[s]. xxx The State, like any other litigant, is entitled to its day in court, and to a reasonable opportunity to present its case.[46]

II

We cannot agree with the Court of Appeals that the filing of this petition is in violation of the respondent's right against double jeopardy on the theory that he has already been practically acquitted when the trial court quashed the Information.

Well settled is the rule that for jeopardy to attach, the following requisites must concur:

(1) there is a complaint or information or other formal charge sufficient in form and substance to sustain a conviction; (2) the same is filed before a court of competent jurisdiction; (3) there is a valid arraignment or plea to the charges; and (4) the accused is convicted or acquitted or the case is otherwise dismissed or terminated without his express consent.[47]

The third and fourth requisites are clearly wanting in the instant case as (a) respondent has not yet entered his plea to the charge when he filed the Motion to Quash the Information, and (2) the case was dismissed not merely with his consent but, in fact, at his instance.[48]

We reiterate, time and again, that jeopardy does not attach in favor of the accused on account of an order sustaining a motion to quash.[49]  More specifically, the granting of a motion to quash anchored on the ground that the facts charged do not constitute an offense is "not a bar to another prosecution for the same offense."[50]  Thus:

It will be noted that the order sustaining the motion to quash the complaint against petitioner was based on Subsection (a) of Section 2 of Rule 117 of the Rules of Court - that the facts charged in the complaint do not constitute an offense.  If this is so then the dismissal of said complaint will not be a bar to

another prosecution for the same offense, for it is provided in Section 8 of Rule 117 of the Rules of Court [now Section 6 of the 2000 Rules of Criminal Procedure] that an order sustaining the motion to quash is not a bar to another prosecution for the same offense unless the motion was based on the grounds specified in Section 2, Subsection[s] (f) and (h) of this rule  [now substantially reproduced in Section 3, Subsections (g) and (i) of the 2000 Rules of Criminal Procedure] xxx.[51]

III

We now determine the merit of the petition Ë— did the trial court act without or in excess of jurisdiction or grave abuse of discretion when it sustained respondent's motion to quash on the basis of a fact contrary to those alleged in the information?

Petitioner maintains that the trial court did so because the motion was a hypothetical admission of the facts alleged in the information and any evidence contrary thereto can only be presented as a matter of defense during trial.

Consistent with existing jurisprudence, we agree with the petitioner.

We define a motion to quash an Information as Ë—

the mode by which an accused assails the validity of a criminal complaint or Information filed against him for insufficiency on its face in point of law, or for defects which are apparent in the face of the Information.[52]

This motion is "a hypothetical admission of the facts alleged in the Information,"[53] for which reason, the court cannot consider allegations contrary to those appearing on the face of the information.[54]

As further elucidated in Cruz, Jr. v. Court of Appeals:[55]

It is axiomatic that a complaint or information must state every single fact necessary to constitute the offense charged; otherwise, a motion to dismiss/quash on the ground that it charges no offense may be properly sustained.  The fundamental test in considering a motion to quash on this ground is whether the facts alleged, if hypothetically admitted, will establish the essential elements of the offense as defined in the law.

Contrary to the petitioner's contention, a reading of the information will disclose that the essential elements of the offense charged are sufficiently alleged.  It is not proper therefore to resolve the charges at the very outset, in a preliminary hearing only and without the benefit of a full-blown trial.  The issues require a

fuller examination.  Given the circumstances of this case, we feel it would be unfair to shut off the prosecution at this stage of the proceedings and to dismiss the informations on the basis only of the petitioner's evidence, such as [this].[56]

As in the recent case of Los Baños v. Pedro,[57] where we found no merit in respondent's allegation that the facts charged do not constitute an offensebecause "the Information duly charged a specific offense and provide[d] the details on how the offense was committed,"[58] we see no apparent defect in the allegations in the Information in the case at bar.  Clearly, the facts alleged in its accusatory portion, which reads:

That on or about the 16th day of February, 1991, in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, LEO R. BERONILLA, having been united in a lawful marriage with one MYRNA A. BERONILLA, which marriage is still in force and subsisting and without having been legally dissolved, did then and there willfully, unlawfully and feloniously contract a second marriage with one Cecile Maguillo, which subsequent marriage of the accused has all the essential requisites for validity.[59]

sufficiently constitute an offense.  It contained all the elements of the crime of Bigamy under Article 349 of the Revised Penal Code hereunder enumerated:

(1) that the offender has been legally married;(2)  that the first marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code;(3)  that he contracts a second or subsequent marriage; and(4) that the second or subsequent marriage has all the essential requisites for validity.[60]

The documents showing that: (1) the court has decreed that the marriage of petitioner and respondent is null and void from the beginning; and (2) such judgment has already become final and executory and duly registered with the Municipal Civil Registrar of Naval, Biliran are pieces of evidence that seek to establish a fact contrary to that alleged in the Information Ë— that a first valid marriage was subsisting at the time the respondent contracted a subsequent marriage. This should not have been considered at all because matters of defense cannot be raised in a motion to quash.

Neither do we find a justifiable reason for sustaining the motion to quash even after taking into consideration the established exceptions to the rule earlier recognized by this Court, among others: (1) when the new allegations are admitted by the prosecution;[61] (2) when the Rules so permit, such as upon the

grounds of extinction of criminal liability and double jeopardy;[62] and (3)  when facts have been established by evidence presented by both parties which destroyed the prima facie truth of the allegations in the information during the hearing on a motion to quash based on the ground that the facts charged do not constitute an offense, and "it would be pure technicality for the court to close its eyes to said facts and still give due course to the prosecution of the case already shown to be weak even to support possible conviction xxx."[63]

For of what significance would the document showing the belated dissolution of the first marriage offer?  Would it serve to prevent the impracticability of proceeding with the trial in accordance with People v. dela Rosa thereby warranting the non-observance of the settled rule that a motion to quash is a hypothetical admission of the facts alleged in the information?  We quote:

[W]here in the hearing on a motion to quash predicated on the ground that the allegations of the information do not charge an offense, facts have been brought out by evidence presented by both parties which destroy the prima facie truth accorded to the allegations of the information on the hypothetical admission thereof, as is implicit in the nature of the ground of the motion to quash, it would be pure technicality for the court to close its eyes to said facts and still give due course to the prosecution of the case already shown to be weak even to support possible conviction, and hold the accused to what would clearly appear to be a merely vexatious and expensive trial, on her part, and a wasteful expense of precious time on the part of the court, as well as of the prosecution.[64] (Emphasis supplied.)

We find that there is none.

With the submission of the documents showing that the court has declared the first marriage void ab initio, respondent heavily relied on the rulings[65]in People v. Mendoza and Morigo declaring that: (a) a case for bigamy based on a void ab initio marriage will not prosper because there is no need for a judicial decree to establish that a void ab initio marriage is invalid;[66] and (b) a marriage declared void ab initio has retroactive legal effect such that there would be no first valid marriage to speak of after all, which renders the elements of bigamy incomplete.[67]

Both principles, however, run contrary to the new provision of the Family Code, which was promulgated by the late President Corazon C. Aquino in 1987, a few years before respondent's subsequent marriage was celebrated in 1991.

The specific provision, which reads:

ART. 40.  The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such marriage void.

was exhaustively discussed in Mercado,[68] where this Court settled the "conflicting" jurisprudence on "the need for a judicial declaration of nullity of the previous marriage."  After establishing that Article 40 is a new provision expressly requiring a judicial declaration of nullity of a prior marriage and examining a long line of cases,[69] this Court, concluded, in essence, that under the Family Code a subsequent judicial declaration of the nullity of the first marriage is immaterial in a bigamy case because, by then, the crime had already been consummated.  Otherwise stated, this Court declared that a person, who contracts a subsequent marriage absent a prior judicial declaration of nullity of a previous one, is guilty of bigamy.[70]

Notably, Morigo, was indeed promulgated years after Mercado.  Nevertheless, we cannot uphold the Order dated 6 December 2007 of the trial court, which maintained that Morigo has already superseded Mercado. In fact,  in Morigo, this Court clearly distinguished the two (2) cases from one another, and explained:

The present case is analogous to, but must be distinguished from Mercado v. Tan.  In the latter case, the judicial declaration of nullity of the first marriage was likewise obtained after the second marriage was already celebrated.  xxx

It bears stressing though that in Mercado, the first marriage was actually solemnized xxx. Ostensibly, at least, the first marriage appeared to have transpired, although later declared void ab initio.

In the instant case, however, no marriage ceremony at all was performed by a duly authorized solemnizing officer.  Petitioner and Lucia Barrete merely signed a marriage contract on their own.  The mere private act of signing a marriage contract bears no semblance to a valid marriage and thus, needs no judicial declaration of nullity.  Such act alone, without more, cannot be deemed to constitute an ostensibly valid marriage for which petitioner might be held liable for bigamy unless he first secures a judicial declaration of nullity before he contracts a subsequent marriage.[71]

The application of Mercado to the cases following Morigo even reinforces the position of this Court to give full meaning to Article 40 of the Family Code. Thus, in 2004, this Court ruled in Tenebro v. Court of Appeals:[72]

Although the judicial declaration of the nullity of a marriage on the ground of psychological incapacity retroacts to the date of the celebration of the marriage

insofar as the vinculum between the spouses is concerned, xxx said marriage is not without legal effects.  Among these effects is that children conceived or born before the judgment of absolute nullity of the marriage shall be considered legitimate.  There is therefore a recognition written into the law itself that such a marriage, although void ab initio, may still produce legal consequences.  Among these legal consequences is incurring criminal liability for bigamy. xxx.[73] (Emphasis supplied.)

Finally, in Re: Complaint of Mrs. Corazon S. Salvador against Spouses Noel and Amelia Serafico,[74] this Court pronounced: 

In a catena of cases,[75] the Court has consistently held that a judicial declaration of nullity is required before a valid subsequent marriage can be contracted; or else, what transpires is a bigamous marriage, reprehensible and immoral. xxx

To conclude, the issue on the declaration of nullity of the marriage between petitioner and respondent only after the latter contracted the subsequent marriage is, therefore, immaterial for the purpose of establishing that the facts alleged in the information for Bigamy does not constitute an offense.  Following the same rationale, neither may such defense be interposed by the respondent in his motion to quash by way of exception to the established rule that facts contrary to the allegations in the information are matters of defense which may be raised only during the presentation of evidence.

All considered, we find that the trial court committed grave abuse of discretion when, in so quashing the Information in Criminal Case No. 07-0907-CFM, it considered an evidence introduced to prove a fact not alleged thereat disregarding the settled rules that a motion to quash is a hypothetical admission of the facts stated in the information; and that facts not alleged thereat may be appreciated only under exceptional circumstances, none of which is obtaining in the instant petition.

WHEREFORE, the Orders dated 20 September 2007 and 6 December 2007 of the Regional Trial Court, Branch 115, Pasay City as well as the Resolutions dated 29 April 2008 and 18 July 2008 of the Court of Appeals are hereby SET ASIDE.  Criminal Case No. 07-0907-CFM is REMANDED to the trial court for further proceedings. 

SO ORDERED.

Corona,C.J., (Chairperson), Leonardo-De Castro,* Del Castillo, and Abad,** JJ., concur.

THIRD DIVISION

[ G.R. No. 164435, September 29, 2009 ]

VICTORIA S. JARILLO, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

D E C I S I O N

PERALTA, J.: 

This resolves the Petition for Review on Certiorari under Rule 45 of the Rules of Court, praying that the Decision[1] of the Court of Appeals (CA), dated July 21, 2003, and its Resolution[2] dated July 8, 2004, be reversed and set aside.

On May 31, 2000, petitioner was charged with Bigamy before the Regional Trial Court (RTC) of Pasay City, Branch 117 under the following Information in Criminal Case No. 00-08-11:

INFORMATION

The undersigned Assistant City Prosecutor accuses VICTORIA S. JARILLO of the crime of BIGAMY, committed as follows:

That on or about the 26th day of November 1979, in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, Victoria S. Jarillo, being previously united in lawful marriage with Rafael M. Alocillo, and without the said marriage having been legally dissolved, did then and there willfully, unlawfully and feloniously contract a second marriage with Emmanuel Ebora Santos Uy which marriage was only discovered on January 12, 1999.

Contrary to law.

On July 14, 2000, petitioner pleaded not guilty during arraignment and, thereafter, trial proceeded.

The undisputed facts, as accurately summarized by the CA, are as follows.

On May 24, 1974, Victoria Jarillo and Rafael Alocillo were married in a civil wedding ceremony solemnized by Hon. Monico C. Tanyag, then Municipal Mayor of Taguig, Rizal (Exhs. A, A-1, H, H-1, H-2, O, O-1, pp. 20-21, TSN dated November 17, 2000).

On May 4, 1975, Victoria Jarillo and Rafael Alocillo again celebrated marriage in a church wedding ceremony before Rev. Angel Resultay in San Carlos City, Pangasinan (pp. 25-26, TSN dated November 17, 2000). Out of the marital union, appellant begot a daughter, Rachelle J. Alocillo on October 29, 1975 (Exhs. F, R, R-1).

Appellant Victoria Jarillo thereafter contracted a subsequent marriage with Emmanuel Ebora Santos Uy, at the City Court of Pasay City, Branch 1, before

then Hon. Judge Nicanor Cruz on November 26, 1979 (Exhs. D, J, J-1, Q, Q-1, pp. 15-18, TSN dated November 22, 2000).

On April 16, 1995, appellant and Emmanuel Uy exchanged marital vows anew in a church wedding in Manila (Exh. E).

In 1999, Emmanuel Uy filed against the appellant Civil Case No. 99-93582 for annulment of marriage before the Regional Trial Court of Manila.

Thereafter, appellant Jarillo was charged with bigamy before the Regional Trial Court of Pasay City x x x.

x x x x

Parenthetically, accused-appellant filed against Alocillo, on October 5, 2000, before the Regional Trial Court of Makati, Civil Case No. 00-1217, for declaration of nullity of their marriage.

On July 9, 2001, the court a quo promulgated the assailed decision, the dispositive portion of which states:

WHEREFORE, upon the foregoing premises, this court hereby finds accused Victoria Soriano Jarillo GUILTY beyond reasonable doubt of the crime of BIGAMY.

Accordingly, said accused is hereby sentenced to suffer an indeterminate penalty of SIX (6) YEARS of prision correccional, as minimum, to TEN (10) YEARS of prision mayor, as maximum.

This court makes no pronouncement on the civil aspect of this case, such as the nullity of accused's bigamous marriage to Uy and its effect on their children and their property. This aspect is being determined by the Regional Trial Court of Manila in Civil Case No. 99-93582.

Costs against the accused.

The motion for reconsideration was likewise denied by the same court in that assailed Order dated 2 August 2001.[3]

For her defense, petitioner insisted that (1) her 1974 and 1975 marriages to Alocillo were null and void because Alocillo was allegedly still married to a certain Loretta Tillman at the time of the celebration of their marriage; (2) her marriages to both Alocillo and Uy were null and void for lack of a valid marriage license; and

(3) the action had prescribed, since Uy knew about her marriage to Alocillo as far back as 1978.

On appeal to the CA, petitioner's conviction was affirmed in toto. In its Decision dated July 21, 2003, the CA held that petitioner committed bigamywhen she contracted marriage with Emmanuel Santos Uy because, at that time, her marriage to Rafael Alocillo had not yet been declared null and void by the court. This being so, the presumption is, her previous marriage to Alocillo was still existing at the time of her marriage to Uy. The CA also struck down, for lack of sufficient evidence, petitioner's contentions that her marriages were celebrated without a marriage license, and that Uy had notice of her previous marriage as far back as 1978.

In the meantime, the RTC of Makati City, Branch 140, rendered a Decision dated March 28, 2003, declaring petitioner's 1974 and 1975 marriages to Alocillo null and void ab initio on the ground of Alocillo's psychological incapacity. Said decision became final and executory on July 9, 2003. In her motion for reconsideration, petitioner invoked said declaration of nullity as a ground for the reversal of her conviction. However, in its Resolution dated July 8, 2004, the CA, citing Tenebro v. Court of Appeals,[4] denied reconsideration and ruled that "[t]he subsequent declaration of nullity of her first marriage on the ground of psychological incapacity, while it retroacts to the date of the celebration of the marriage insofar as the vinculum between the spouses is concerned, the said marriage is not without legal consequences, among which is incurring criminal liability for bigamy."[5]

Hence, the present petition for review on certiorari under Rule 45 of the Rules of Court where petitioner alleges that:

V.1. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN PROCEEDING WITH THE CASE DESPITE THE PENDENCY OF A CASE WHICH IS PREJUDICIAL TO THE OUTCOME OF THIS CASE.

V.2. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN AFFIRMING THE CONVICTION OF PETITIONER FOR THE CRIME OFBIGAMY DESPITE THE SUPERVENING PROOF THAT THE FIRST TWO MARRIAGES OF PETITIONER TO ALOCILLO HAD BEEN DECLARED BY FINAL JUDGMENT NULL AND VOID AB INITIO.

V.3. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT CONSIDERING THAT THERE IS A PENDING ANNULMENT OF MARRIAGE AT THE REGIONAL TRIAL COURT BRANCH 38 BETWEEN EMMANUEL SANTOS AND VICTORIA S. JARILLO.

V.4. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT CONSIDERING THAT THE INSTANT CASE OF BIGAMY HAD ALREADY PRESCRIBED.

V.5. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT CONSIDERING THAT THE MARRIAGE OF VICTORIA JARILLO AND EMMANUEL SANTOS UY HAS NO VALID MARRIAGE LICENSE.

V.6. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT ACQUITTING THE PETITIONER BUT IMPOSED AN ERRONEOUS PENALTY UNDER THE REVISED PENAL CODE AND THE INDETERMINATE SENTENCE LAW.

The first, second, third and fifth issues, being closely related, shall be discussed jointly. It is true that right after the presentation of the prosecution evidence, petitioner moved for suspension of the proceedings on the ground of the pendency of the petition for declaration of nullity of petitioner's marriages to Alocillo, which, petitioner claimed involved a prejudicial question. In her appeal, she also asserted that the petition for declaration of nullity of her marriage to Uy, initiated by the latter, was a ground for suspension of the proceedings. The RTC denied her motion for suspension, while the CA struck down her arguments. In Marbella-Bobis v. Bobis,[6] the Court categorically stated that:

x x x as ruled in Landicho v. Relova, he who contracts a second marriage before the judicial declaration of nullity of the first marriage assumes the risk of being prosecuted for bigamy, and in such a case the criminal case may not be suspended on the ground of the pendency of a civil case for declaration of nullity. x x x

x x x x

x x x The reason is that, without a judicial declaration of its nullity, the first marriage is presumed to be subsisting. In the case at bar, respondent was for all legal intents and purposes regarded as a married man at the time he contracted his second marriage with petitioner. Against this legal backdrop, any decision in the civil action for nullity would not erase the fact that respondent entered into a second marriage during the subsistence of a first marriage. Thus, a decision in the civil case is not essential to the determination of the criminal charge. It is, therefore, not a prejudicial question. x x x[7]

The foregoing ruling had been reiterated in Abunado v. People,[8] where it was held thus:

The subsequent judicial declaration of the nullity of the first marriage

was immaterial because prior to the declaration of nullity, the crime had already been consummated. Moreover, petitioner's assertion would only delay the prosecution of bigamy cases considering that an accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that.

The outcome of the civil case for annulment of petitioner's marriage to [private complainant] had no bearing upon the determination of petitioner's innocence or guilt in the criminal case for bigamy, because all that is required for the charge ofbigamy to prosper is that the first marriage be subsisting at the time the second marriage is contracted.

Thus, under the law, a marriage, even one which is void or voidable, shall be deemed valid until declared otherwise in a judicial proceeding. In this case, even if petitioner eventually obtained a declaration that his first marriage was void ab initio, the point is, both the first and the second marriage were subsisting before the first marriage was annulled.[9]

For the very same reasons elucidated in the above-quoted cases, petitioner's conviction of the crime of bigamy must be affirmed. The subsequent judicial declaration of nullity of petitioner's two marriages to Alocillo cannot be considered a valid defense in the crime of bigamy. The moment petitioner contracted a second marriage without the previous one having been judicially declared null and void, the crime of bigamy was already consummated because at the time of the celebration of the second marriage, petitioner's marriage to Alocillo, which had not yet been declared null and void by a court of competent jurisdiction, was deemed valid and subsisting. Neither would a judicial declaration of the nullity of petitioner's marriage to Uy make any difference.[10] As held in Tenebro, "[s]ince a marriage contracted during the subsistence of a valid marriage is automatically void, the nullity of this second marriage is not per se an argument for the avoidance of criminal liability for bigamy. x x x A plain reading of [Article 349 of the Revised Penal Code], therefore, would indicate that the provision penalizes the mere act of contracting a second or subsequent marriage during the subsistence of a valid marriage."[11]

Petitioner's defense of prescription is likewise doomed to fail.

Under Article 349 of the Revised Penal Code, bigamy is punishable by prision mayor, which is classified under Article 25 of said Code as an afflictive penalty. Article 90 thereof provides that "[c]rimes punishable by other afflictive penalties shall prescribe in fifteen years," while Article 91 states that "[t]he period of prescription shall commence to run from the day on which the crime is discovered by the offended party, the authorities, or their agents x x x ."

Petitioner asserts that Uy had known of her previous marriage as far back as 1978; hence, prescription began to run from that time. Note that the party who raises a fact as a matter of defense has the burden of proving it. The defendant or accused is obliged to produce evidence in support of its defense; otherwise, failing to establish the same, it remains self-serving.[12] Thus, for petitioner's defense of prescription to prosper, it was incumbent upon her to adduce evidence that as early as the year 1978, Uy already obtained knowledge of her previous marriage.

A close examination of the records of the case reveals that petitioner utterly failed to present sufficient evidence to support her allegation. Petitioner's testimony that her own mother told Uy in 1978 that she (petitioner) is already married to Alocillo does not inspire belief, as it is totally unsupported by any corroborating evidence. The trial court correctly observed that:

x x x She did not call to the witness stand her mother - the person who allegedly actually told Uy about her previous marriage to Alocillo. It must be obvious that without the confirmatory testimony of her mother, the attribution of the latter of any act which she allegedly did is hearsay.[13]

As ruled in Sermonia v. Court of Appeals,[14] "the prescriptive period for the crime of bigamy should be counted only from the day on which the said crime was discovered by the offended party, the authorities or their [agents]," as opposed to being counted from the date of registration of the bigamous marriage.[15] Since petitioner failed to prove with certainty that the period of prescription began to run as of 1978, her defense is, therefore, ineffectual.

Finally, petitioner avers that the RTC and the CA imposed an erroneous penalty under the Revised Penal Code. Again, petitioner is mistaken.

The Indeterminate Sentence Law provides that the accused shall be sentenced to an indeterminate penalty, the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the Revised Penal Code, and the minimum of which shall be within the range of the penalty next lower than that prescribed by the Code for the offense, without first considering any modifying circumstance attendant to the commission of the crime. The Indeterminate Sentence Law leaves it entirely within the sound discretion of the court to determine the minimum penalty, as long as it is anywhere within the range of the penalty next lower without any reference to the periods into which it might be subdivided. The modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence.[16]

Applying the foregoing rule, it is clear that the penalty imposed on petitioner is proper. Under Article 349 of the Revised Penal Code, the imposable penalty for bigamy is prision mayor. The penalty next lower is prision correccional, which ranges from 6 months and 1 day to 6 years. The minimum penalty of six years imposed by the trial court is, therefore, correct as it is still within the duration of prision correccional. There being no mitigating or aggravating circumstances proven in this case, the prescribed penalty of prision mayor should be imposed in its medium period, which is from 8 years and 1 day to 10 years. Again, the trial court correctly imposed a maximum penalty of 10 years.

However, for humanitarian purposes, and considering that petitioner's marriage to Alocillo has after all been declared by final judgment[17] to be void ab initio on account of the latter's psychological incapacity, by reason of which, petitioner was subjected to manipulative abuse, the Court deems it proper to reduce the penalty imposed by the lower courts. Thus, petitioner should be sentenced to suffer an indeterminate penalty of imprisonment from Two (2) years, Four (4) months and One (1) day of prision correccional, as minimum, to 8 years and 1 day of prision mayor, as maximum.

IN VIEW OF THE FOREGOING, the petition is PARTLY GRANTED. The Decision of the Court of Appeals dated July 21, 2003, and its Resolution dated July 8, 2004 are hereby MODIFIED as to the penalty imposed, but AFFIRMED in all other respects. Petitioner is sentenced to suffer an indeterminate penalty of imprisonment from Two (2) years, Four (4) months and One (1) day of prision correccional, as minimum, to Eight (8) years and One (1) day ofprision mayor, as maximum.

SO ORDERED.

EN BANC

[ G.R. No. 148194, April 12, 2002 ]

WILLY TAN Y CHUA, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENTS.

DECISION

VITUG, J.: 

On 12 December 1996, petitioner Willy Tan was found guilty of bigamy by the Regional Trial Court, Branch 75, of San Mateo, Rizal.  He was sentenced to suffer a prison term of prision correccional in its medium period ranging from two (2) years, four (4) months, and one (1) day, to four (4) years and two (2) months.  On 23 December 1996, petitioner applied for probation.  On 8 January 1997, the application was granted by the trial court but the release order was withheld in view of the filing by the prosecution, on 21 January 1997, of a motion for modification of the penalty.  The prosecution pointed out that the penalty for bigamy under Article 349 of the Revised Penal Code was prision mayor and the imposable penalty, absent any mitigating nor aggravating circumstance, should be the medium period of prision mayor, or from eight (8) years and one (1) day to ten (10) years.  Thus, the prosecution argued, petitioner was not eligible for probation.

The trial court denied the motion of the prosecution for having been filed out of time since the decision sought to be modified had already attained finality.  Indeed, petitioner had meanwhile applied for probation.  Upon motion of the prosecution, however, the trial court reconsidered its order and rendered an amended decision, promulgated on 10 July 1998, concluding thusly:“WHEREFORE, premises considered, judgment is hereby rendered finding accused Willy Tan GUILTY beyond reasonable doubt of the crime ofBigamy and applying the Indeterminate Sentence Law, is hereby sentenced to suffer a minimum prison term of prision [correccional] TWO (2) YEARS, FOUR (4) MONTHS AND ONE (1) DAY to a maximum prison term of EIGHT (8) YEARS AND ONE (1) DAY.”[1]

On 13 July 1998, petitioner filed a notice of appeal with the trial court and elevated the case to the Court of Appeals, contending that -“THE LOWER COURT ERRED IN AMENDING THE FIRST DECISION INCREASING THE PENALTY AFTER THE SAME HAD ALREADY BECOME FINAL AND EXECUTORY.”[2]

The Court of Appeals, in a decision, dated 18 August 2000, dismissed petitioner’s appeal on the ground that petitioner raised a pure question of law.  Citing Article VIII, Section 5(2)(e), of the Constitution, the appellate court explained that jurisdiction over the case was vested exclusively in the Supreme Court and that, in accordance with Rule 122, Section 3(e), of the Rules of Criminal Procedure, the appeal should have been brought up by way of a petition for review on certiorari with this Court and not by merely filing a notice of appeal before the trial court.

Petitioner filed a motion for reconsideration which, on 18 May 2001,  was denied

by the appellate court.  The petition for review on certiorari before this Court raised the following issues:“I. THE COURT OF APPEALS GRAVELY ERRED IN APPLYING SECTION 2, RULE 50 ON

DISMISSAL OF IMPROPER APPEAL TO THE COURT OF APPEALS AS THE SAID SECTION REFERS TO AN APPEAL UNDER RULE 41 IN ORDINARY CIVIL ACTION BUT NOT TO AN APPEAL IN CRIMINAL CASES WHICH IS GOVERNED BY RULE 122 OF THE REVISED RULES ON CRIMINAL PROCEDURE.

“II. THE COURT OF APPEALS ERRED IN HOLDING THAT THE SUPREME COURT HAS EXCLUSIVE APPELLATE JURISDICTION ON PURE QUESTIONS OF LAW.

“III. THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT BECAUSE THE APPEAL RAISED PURE QUESTIONS OF LAW, IT IS WITHOUT JURISDICTION TO RESOLVE THE ISSUE RAISED IN THE APPEAL.

“IV. THE COURT OF APPEALS GRAVELY ERRED IN DISMISSING THE APPEAL OUTRIGHT INSTEAD OF DECLARING THE AMENDED DECISION VOID FOR UTTER WANT OF JURISDICTION.

“V. THE COURT OF APPEALS ERRED IN HOLDING THAT RULE 65 IS THE PROPER REMEDY TO RAISE THE ISSUE OF JURISDICTION AND IF SO IN NOT TREATING THE APPEAL AS A SPECIAL CIVIL ACTION FOR CERTIORARI.”[3]

In all criminal prosecutions, the accused shall have the right to appeal in the manner prescribed by law.[4] While this right is statutory, once it is granted by law, however, its suppression would be a violation of due process, itself a right guaranteed by the Constitution.[5] Section 3(a), Rule 122 of the Rules of Criminal Procedure states:“Section 3. How appeal is taken. –

(a) The appeal to the Regional Trial Court, or to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction, shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and by serving a copy thereof upon the adverse party. (Emphasis supplied).

The above rule is plain and unambiguous – the remedy of ordinary appeal by notice of appeal, although not necessarily preclusive of other remedies provided for by the rules, is open and available to petitioner.

The notice of appeal was timely filed by petitioner on 13 July 1998, three days after the questioned decision was promulgated.[6] It was a remedy that the law allowed him to avail himself of, and it threw the whole case effectively open for review on both questions of law and of fact whether or not raised by the parties.

Neither the Constitution nor the Rules of Criminal Procedure exclusively vests in the Supreme Court the power to hear cases on appeal in which only an error of law is involved.[7] Indeed, the Court of Appeals, under Rule 42 and 44 of the Rules of Civil Procedure, is authorized to determine “errors of fact, of law, or both.”[8] These rules are expressly adopted to apply to appeals in criminal cases,[9] and they do not thereby divest the Supreme Court of its ultimate jurisdiction over such questions.

Anent the argument that petitioner should have filed a petition

for certiorari under Rule 65, it might be pointed out that this remedy can only be resorted to when there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law.[10] Appeal, being a remedy still available to petitioner, a petition for certiorari would have been premature.

In fine, petitioner had taken an appropriate legal step in filing a notice of appeal with the trial court.  Ordinarily, the Court should have the case remanded to the Court of Appeals for further proceedings. The clear impingement upon petitioner’s basic right against double jeopardy,[11] however, should here warrant the exercise of the prerogative by this Court to relax the stringent application of the rules on the matter.  When the trial court increased the penalty on petitioner for his crime of bigamy after it had already pronounced judgment and on which basis he then, in fact, applied for probation, the previous verdict could only be deemed to have lapsed into finality.

Section 7, Rule 120, of the Rules on Criminal Procedure that states –“Sec. 7.  Modification of judgment. – A judgment of conviction may, upon motion of the accused, be modified or set aside before it becomes final or before appeal is perfected.  Except where the death penalty is imposed, a judgment becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or when the accused has waived in writing his right to appeal, or has applied for probation”-implements a substantive provision of the Probation Law which enunciates that the mere filing of an application for probation forecloses the right to appeal.“SEC. 4.  Grant of Probation. – Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant, and upon application by said defendant within the period for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best: Provided, That no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment or conviction.

“Probation may be granted whether the sentence imposes a term of imprisonment or a fine only.  An application for probation shall be filed with the trial court.  The filing of the application shall be deemed a waiver of the right to appeal.

“An order granting or denying probation shall not be appealable.  (As amended by PD 1257, and by PD 1990, Oct. 5, 1985.)”[12]

Such a waiver amounts to a voluntary compliance with the decision and writes finis to the jurisdiction of the trial court over the judgment.[13] There is no principle better settled, or of more universal application, than that no court can

reverse or annul, reconsider or amend, its own final decree or judgment.[14] Any attempt by the court to thereafter alter, amend or modify the same, except in respect to correct clerical errors, would be unwarranted.

WHEREFORE, the petition is given due course.  The assailed amendatory judgment of the trial court is SET ASIDE and its decision of 12 December 1996 is REINSTATED.  No costs.

SO ORDERED.

SECOND DIVISION

[ G.R. No. 145226, February 06, 2004 ]

LUCIO MORIGO Y CACHO, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

D E C I S I O N

QUISUMBING, J.: 

This petition for review on certiorari seeks to reverse the decision[1] dated October 21, 1999 of the Court of Appeals in CA-G.R. CR No. 20700, which affirmed the judgment[2] dated August 5, 1996 of the Regional Trial Court (RTC)

of Bohol, Branch 4, in Criminal Case No. 8688. The trial court found herein petitioner Lucio Morigo y Cacho guilty beyond reasonable doubt of bigamy and sentenced him to a prison term of seven (7) months of prision correccional as minimum to six (6) years and one (1) day of prision mayor as maximum. Also assailed in this petition is the resolution[3] of the appellate court, dated September 25, 2000, denying Morigo’s motion for reconsideration.The facts of this case, as found by the court a quo, are as follows:

Appellant Lucio Morigo and Lucia Barrete were boardmates at the house of Catalina Tortor at Tagbilaran City, Province of Bohol, for a period of four (4) years (from 1974-1978).

After school year 1977-78, Lucio Morigo and Lucia Barrete lost contact with each other.

In 1984, Lucio Morigo was surprised to receive a card from Lucia Barrete from Singapore. The former replied and after an exchange of letters, they became sweethearts.

In 1986, Lucia returned to the Philippines but left again for Canada to work there. While in Canada, they maintained constant communication.

In 1990, Lucia came back to the Philippines and proposed to petition appellant to join her in Canada. Both agreed to get married, thus they were married on August 30, 1990 at the Iglesia de Filipina Nacional at Catagdaan, Pilar, Bohol.

On September 8, 1990, Lucia reported back to her work in Canada leaving appellant Lucio behind.

On August 19, 1991, Lucia filed with the Ontario Court (General Division) a petition for divorce against appellant which was granted by the court on January 17, 1992 and to take effect on February 17, 1992.

On October 4, 1992, appellant Lucio Morigo married Maria Jececha Lumbago[4] at the Virgen sa Barangay Parish, Tagbilaran City, Bohol.

On September 21, 1993, accused filed a complaint for judicial declaration of nullity of marriage in the Regional Trial Court of Bohol, docketed as Civil Case No. 6020. The complaint seek (sic) among others, the declaration of nullity of accused’s marriage with Lucia, on the ground that no marriage ceremony actually took place.

On October 19, 1993, appellant was charged with Bigamy in an

Information[5] filed by the City Prosecutor of Tagbilaran [City], with the Regional Trial Court of Bohol.[6]

The petitioner moved for suspension of the arraignment on the ground that the civil case for judicial nullification of his marriage with Lucia posed a prejudicial question in the bigamy case. His motion was granted, but subsequently denied upon motion for reconsideration by the prosecution. When arraigned in the bigamy case, which was docketed as Criminal Case No. 8688, herein petitioner pleaded not guilty to the charge. Trial thereafter ensued.

On August 5, 1996, the RTC of Bohol handed down its judgment in Criminal Case No. 8688, as follows:WHEREFORE, foregoing premises considered, the Court finds accused Lucio Morigo y Cacho guilty beyond reasonable doubt of the crime ofBigamy and sentences him to suffer the penalty of imprisonment ranging from Seven (7) Months of Prision Correccional as minimum to Six (6) Years and One (1) Day of Prision Mayor as maximum.

SO ORDERED.[7]

In convicting herein petitioner, the trial court discounted petitioner’s claim that his first marriage to Lucia was null and void ab initio.  Following Domingo v. Court of Appeals,[8] the trial court ruled that want of a valid marriage ceremony is not a defense in a charge of bigamy.  The parties to a marriage should not be allowed to assume that their marriage is void even if such be the fact but must first secure a judicial declaration of the nullity of their marriage before they can be allowed to marry again.

Anent the Canadian divorce obtained by Lucia, the trial court cited Ramirez v. Gmur,[9] which held that the court of a country in which neither of the spouses is domiciled and in which one or both spouses may resort merely for the purpose of obtaining a divorce, has no jurisdiction to determine the matrimonial status of the parties.  As such, a divorce granted by said court is not entitled to recognition anywhere. Debunking Lucio’s defense of good faith in contracting the second marriage, the trial court stressed that following People v. Bitdu,[10] everyone is presumed to know the law, and the fact that one does not know that his act constitutes a violation of the law does not exempt him from the consequences thereof.

Seasonably, petitioner filed an appeal with the Court of Appeals, docketed as CA-G.R. CR No. 20700.

Meanwhile, on October 23, 1997, or while CA-G.R. CR No. 20700 was pending before the appellate court, the trial court rendered a decision in Civil Case No. 6020 declaring the marriage between Lucio and Lucia void ab initio since no

marriage ceremony actually took place. No appeal was taken from this decision, which then became final and executory.

On October 21, 1999, the appellate court decided CA-G.R. CR No. 20700 as follows:WHEREFORE, finding no error in the appealed decision, the same is hereby AFFIRMED in toto.

SO ORDERED.[11]

In affirming the assailed judgment of conviction, the appellate court stressed that the subsequent declaration of nullity of Lucio’s marriage to Lucia in Civil Case No. 6020 could not acquit Lucio.  The reason is that what is sought to be punished by Article 349[12] of the Revised Penal Code is the act of contracting a second marriage before the first marriage had been dissolved. Hence, the CA held, the fact that the first marriage was void from the beginning is not a valid defense in a bigamy case.

The Court of Appeals also pointed out that the divorce decree obtained by Lucia from the Canadian court could not be accorded validity in the Philippines, pursuant to Article 15[13] of the Civil Code and given the fact that it is contrary to public policy in this jurisdiction. Under Article 17[14] of the Civil Code, a declaration of public policy cannot be rendered ineffectual by a judgment promulgated in a foreign jurisdiction.

Petitioner moved for reconsideration of the appellate court’s decision, contending that the doctrine in Mendiola v. People,[15] allows mistake upon a difficult question of law (such as the effect of a foreign divorce decree) to be a basis for good faith.

On September 25, 2000, the appellate court denied the motion for lack of merit.[16] However, the denial was by a split vote. The ponente of the appellate court’s original decision in CA-G.R. CR No. 20700, Justice Eugenio S. Labitoria, joined in the opinion prepared by Justice Bernardo P. Abesamis.  The dissent observed that as the first marriage was validly declared void ab initio, then there was no first marriage to speak of. Since the date of the nullity retroacts to the date of the first marriage and since herein petitioner was, in the eyes of the law, never married, he cannot be convicted beyond reasonable doubt of bigamy.The present petition raises the following issues for our resolution:

A.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPLY THE RULE THAT IN CRIMES PENALIZED UNDER THE REVISED PENAL CODE, CRIMINAL INTENT IS AN INDISPENSABLE REQUISITE. COROLLARILY, WHETHER OR NOT THE

COURT OF APPEALS ERRED IN FAILING TO APPRECIATE [THE] PETITIONER’S LACK OF CRIMINAL INTENT WHEN HE CONTRACTED THE SECOND MARRIAGE.

B.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN HOLDING THAT THE RULING IN PEOPLE VS. BITDU (58 PHIL. 817) IS APPLICABLE TO THE CASE AT BAR.

C.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPLY THE RULE THAT EACH AND EVERY CIRCUMSTANCE FAVORING THE INNOCENCE OF THE ACCUSED MUST BE TAKEN INTO ACCOUNT.[17]

To our mind, the primordial issue should be whether or not petitioner committed bigamy and if so, whether his defense of good faith is valid.

The petitioner submits that he should not be faulted for relying in good faith upon the divorce decree of the Ontario court.  He highlights the fact that he contracted the second marriage openly and publicly, which a person intent upon bigamy would not be doing. The petitioner further argues that his lack of criminal intent is material to a conviction or acquittal in the instant case.  The crime of bigamy, just like other felonies punished under the Revised Penal Code, is mala in se, and hence, good faith and lack of criminal intent are allowed as a complete defense. He stresses that there is a difference between the intent to commit the crime and the intent to perpetrate the act. Hence, it does not necessarily follow that his intention to contract a second marriage is tantamount to an intent to commit bigamy.

For the respondent, the Office of the Solicitor General (OSG) submits that good faith in the instant case is a convenient but flimsy excuse. The Solicitor General relies upon our ruling in Marbella-Bobis v. Bobis,[18] which held that bigamy can be successfully prosecuted provided all the elements concur, stressing that under Article 40[19] of the Family Code, a judicial declaration of nullity is a must before a party may re-marry. Whether or not the petitioner was aware of said Article 40 is of no account as everyone is presumed to know the law.  The OSG counters that petitioner’s contention that he was in good faith because he relied on the divorce decree of the Ontario court is negated by his act of filing Civil Case No. 6020, seeking a judicial declaration of nullity of his marriage to Lucia.

Before we delve into petitioner’s defense of good faith and lack of criminal intent, we must first determine whether all the elements of bigamy are present in this case. In Marbella-Bobis v. Bobis,[20] we laid down the elements of bigamy thus:

(1)  the offender has been legally married;

(2) the first marriage has not been legally dissolved, or in case his or her spouse is absent, the absent spouse has not been judicially declared presumptively dead;

(3) he contracts a subsequent marriage; and

(4) the subsequent marriage would have been valid had it not been for the existence of the first.

Applying the foregoing test to the instant case, we note that during the pendency of CA-G.R. CR No. 20700, the RTC of Bohol Branch 1, handed down the following decision in Civil Case No. 6020, to wit:WHEREFORE, premises considered, judgment is hereby rendered decreeing the annulment of the marriage entered into by petitioner Lucio Morigo and Lucia Barrete on August 23, 1990 in Pilar, Bohol and further directing the Local Civil Registrar of Pilar, Bohol to effect the cancellation of the marriage contract.

SO ORDERED.[21]

The trial court found that there was no actual marriage ceremony performed between Lucio and Lucia by a solemnizing officer. Instead, what transpired was a mere signing of the marriage contract by the two, without the presence of a solemnizing officer. The trial court thus held that the marriage is voidab initio, in accordance with Articles 3[22] and 4[23] of the Family Code. As the dissenting opinion in CA-G.R. CR No. 20700, correctly puts it, “This simply means that there was no marriage to begin with; and that such declaration of nullity retroacts to the date of the first marriage. In other words, for all intents and purposes, reckoned from the date of the declaration of the first marriage as void ab initio to the date of the celebration of the first marriage, the accused was, under the eyes of the law, never married.”[24] The records show that no appeal was taken from the decision of the trial court in Civil Case No. 6020, hence, the decision had long become final and executory.

The first element of bigamy as a crime requires that the accused must have been legally married. But in this case, legally speaking, the petitioner was never married to Lucia Barrete. Thus, there is no first marriage to speak of.  Under the principle of retroactivity of a marriage being declared void ab initio, the two were never married “from the beginning.”  The contract of marriage is null; it bears no legal effect.  Taking this argument to its logical conclusion, for legal purposes, petitioner was not married to Lucia at the time he contracted the marriage with Maria Jececha. The existence and the validity of the first marriage being an essential element of the crime of bigamy, it is but logical that a conviction for said offense cannot be sustained where there is no first marriage to speak of. The

petitioner, must, perforce be acquitted of the instant charge.

The present case is analogous to, but must be distinguished from Mercado v. Tan.[25] In the latter case, the judicial declaration of nullity of the first marriage was likewise obtained after the second marriage was already celebrated. We held therein that:A judicial declaration of nullity of a previous marriage is necessary before a subsequent one can be legally contracted. One who enters into a subsequent marriage without first obtaining such judicial declaration is guilty of bigamy. This principle applies even if the earlier union is characterized by statutes as “void.”[26]

It bears stressing though that in Mercado, the first marriage was actually solemnized not just once, but twice: first before a judge where a marriage certificate was duly issued and then again six months later before a priest in religious rites. Ostensibly, at least, the first marriage appeared to have transpired, although later declared void ab initio.

In the instant case, however, no marriage ceremony at all was performed by a duly authorized solemnizing officer.  Petitioner and Lucia Barrete merely signed a marriage contract on their own. The mere private act of signing a marriage contract bears no semblance to a valid marriage and thus, needs no judicial declaration of nullity.  Such act alone, without more, cannot be deemed to constitute an ostensibly valid marriage for which petitioner might be held liable for bigamy unless he first secures a judicial declaration of nullity before he contracts a subsequent marriage.

The law abhors an injustice and the Court is mandated to liberally construe a penal statute in favor of an accused and weigh every circumstance in favor of the presumption of innocence to ensure that justice is done.  Under the circumstances of the present case, we held that petitioner has not committedbigamy.  Further, we also find that we need not tarry on the issue of the validity of his defense of good faith or lack of criminal intent, which is now moot and academic.

WHEREFORE, the instant petition is GRANTED.  The assailed decision, dated October 21, 1999 of the Court of Appeals in CA-G.R. CR No. 20700, as well as the resolution of the appellate court dated September 25, 2000, denying herein petitioner’s motion for reconsideration, is REVERSED and SET ASIDE.  The petitioner Lucio Morigo y Cacho is ACQUITTED from the charge of BIGAMY on the ground that his guilt has not been proven with moral certainty.

SO ORDERED.