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[US v. GENOVEVA DESTRITO](http://lawyerly.ph/juris/view/c990?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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[ GR No. 6984, Aug 19, 1912 ]

US v. GENOVEVA DESTRITO +

DECISION

23 Phil. 28

[ G.R. No. 6984, August 19, 1912 ]

THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. GENOVEVA DESTRITO AND GERARDO PE OCAMPO, DEFENDANTS AND APPELLANTS.

D E C I S I O N

TRENT, J.:

This is an appeal from a judgment of the Court of First Instance of the city of Manila,  condemning Genoveva Destrito to three years  six months and  twenty-one  days of prision correccional, and Gerardo de Ocampo  to four years nine months and ten  days of prision correccional, and the latter to indemnify the offended party, Arcadio de la Ysla, in the sum of  P500, with the corresponding subsidiary imprisonment in case of insolvency, for the crime of adultery. Each was also sentenced to the accessory penalties provided by law, and to the payment of  one-half of the costs of the cause.  Both appealed and make the following assignment of errors. 

"l. The  court erred in finding the accused guilty  under the complaint  presented in this case, because of not having acquired  jurisdiction. 

"2. The  court erred in  declaring  the accused guilty because the proofs do not show that the alleged crime was committed within the jurisdiction of the court. 

"3. The  judge erred  in  declaring  the accused guilty because the proofs do not show their guilt beyond a reasonable doubt. 

"4. The  court  erred in finding the  concurrence of the aggravating circumstance that the  crime had been  committed in the house of the offended party."

The first and  second assignments of error relate to the jurisdiction of the court, and can be  considered together. The complaint in this case,  presented  on  the 24th of February, 1911, and which  was signed and  sworn to by the offended  party,  did not contain any  allegation that the crime was committed within the city of Manila.   The case was called for hearing on March 1 of that year.  By agreement, the hearing was transferred until the 9th.  The prosecuting attorney, immediately after it was agreed that the case should be transferred, filed a motion asking permission to amend the complaint by inserting the words "in the city of Manila, Philippine Islands."   The two accused and their attorney were present  when  this motion  was  made and offered no  objection. The correction  was granted by the court,  and  the complaint so amended.  On March 9th the defendants pleaded not guilty and the case went to  trial. No objection was made to the sufficiency of the complaint by demurrer or otherwise in the court below.  In the sylabus to Serra vs. Mortiga, 204 U. S.,  470  (reported in  11 Phil. Rep.,  762), it  is said: 

"While a complaint on a charge of adultery  under the Penal Code of the Philippine Islands may be fatally defective for lack of essential averments as to  place and knowledge on the part of the man that the woman was married, objections of that nature must be taken at  the trial, and if not taken, and the omitted averments are supplied by competent proof, it is not error for the Supreme Court of the Philippine Islands to refuse to sustain such objections on appeal."

In the case of United States vs. Estrana (16 Phil. Rep., 520), this court said: 

"No objections to the sufficiency of the  complaint  were made in the court below, and it is now well settled that it is not error for this court to refuse to sustain such objections taken for the first  time on appeal when the fatal defects in the complaint are supplied by competent proof."

So it is clear that the question raised in this court for the first time with  reference to the sufficiency of the  complaint  is not well founded.  But it is said  that the proofs do not show that the crime was committed within the jurisdiction of the lower  court.  If the appellants had illicit relations, the acts were committed in the house of the offended husband, Arcadio de la  Ysla.  The latter testified that  he lived at No. 300 Calle Herran, city of Manila, Philippine Islands.  He did not see the actual crime  committed, but says that he did see the appellants hugging and  kissing in his house on Calle Herran.   The witness Vicente Binapasoc testified that he saw the appellants cohabiting in a room in the house of the injured husband at No. 300 Calle Herran. He did not state that this  house was situated in Manila, but he did state, as we have said, that the acts were committed in the house of the offended party.  Other witnesses testified to the same effect as Binapasoc.  The testimony of all these witnesses read and considered as  a whole, as it should be, shows as clearly that the acts complained of were committed within the city of Manila as if it had been specifically stated by each that the house of the  offended party was located in the city of Manila, Philippine Islands.

The third assignment of error raises a question of fact. All admit, that Arcadio de la Ysla and the appellant Genoveva Destrito are husband and wife and that for some eight or nine months prior to February 3, 1911, the other appellant Gerardo de Ocampo, lived with this married couple in their house, and that both the appellants left this house on that date and have not returned.   According to the testimony of Ysla, he saw his wife and Ocampo on the second of February riding  in  a carromata,  Ocampo  with his arm around Genoveva's waist, and Genoveva with her" head lying on Ocampo's shoulder,  and  that on the following day on entering his house he saw Ocampo and his wife hugging and kissing in a corner of the room; that he then immediately ordered Ocampo to leave the house and told his  wife to follow him; and that they both left.

The wife testified that when her husband entered  the house on  that  day, the 3d  of February, he immediately demanded  of her  forty pesos which he claimed she had received from certain  parties,  and that as  she  could  not produce the money,  not having  received  it, he began  to abuse  and insult  her,  and drove her  from her home. Ocampo testified that on that date he requested the offended party to render an account  of a certain business in which they were both interested, as Ysla was the treasurer of the company,  and that on making this demand Ysla became very angry and ordered him to leave.  Ysla, sometime prior to the time this trouble arose, attempted to organize a small company for the purchase and sale of the products of the country.  It appears that Ocampo prepared  the by-laws and constitution of this company, and on  account of being somewhat versed in these matters, he received an invitation from Ysla and his wife to make his home with them and become director-general of the company.  But he at no time placed any money in the concern, nor rendered it any services of value.  In fact, practically all the assets of the com- pany existed on paper.  The company was a failure and there was no reason for demanding an accounting of Ysla because there was nothing to account  for.  Ysla  did have and was running a small tienda near  his house.   So it is quite strange that Ocampo should have demanded an  accounting of Ysla at any time, and especially at the time he and his wife had  quarrelled  and she as a result had left the house.   As a matter of fact, there is nothing to support the contention of the latter that her husband brought on the quarrel on account of the forty  pesos. The offended husband had his suspicions  aroused on the 2d when he saw the two appellants riding  in a carromata  and  had decided to watch their conduct.   Both the appellants admit that they were riding in a carromata,  but deny that they were in that compromising position.  Aside from the testimony of the offended husband, there appears in the record the testimony of at least three witnesses, all of whom testified that they saw the two appellants in the act of cohabitation prior to February 3, 1911, and that these  illicit  relations took place in the house of the offended party, No. 300 Calle Herran.  There  is nothing in the record  which shows or even tends to show that these three witnesses were not telling the truth.  They lived in the  immediate vicinity, and in fact one of them was living in the house of the offended husband when he surprised the appellants  committing this unlawful act.  The trial court believed that these witnesses testified the truth and found the appellants guilty  of the crime of adultery.  This finding of fact is fully supported by the testimony of record.

The trial court found and applied the aggravating circumstance of morada, and also, with reference to Ocampo, the aggravating circumstance of abuse of confidence.  It is true that the crime was committed in the house of the offended husband, but it is likewise true that this  same house was the home of both  the appellants.  Genoveva and Ocampo had a right to be in the house, the former because she was the wife of Ysla,  and the latter because that was then his place of residence, he having gone there to live on the joint invitation of Ysla  and his wife.  Under these facts  it was error to apply the aggravating circumstance  of morada. (Decision supreme court of Spain, November 16, 1871, published in Official Gazette, January 9,1872.)   The trial court committed no error in applying the aggravating circumstance of abuse of confidence in imposing the penalty upon Ocampo, inasmuch as  the record  clearly shows that the offended husband  took Ocampo into his home, furnished him with food and lodging without charge, and treated him like a son.

With  reference to Genoveva, there being no aggravating and no  extenuating circumstances,  the penalty should  be imposed in its medium degree.  This was done by the court.

With reference to Gerardo de Ocampo, there being presents pne aggravating circumstance and no extenuating circumstances, the sentence should be imposed in  its maximum degree.  This  was likewise done by the  court.

With  the modifications as above set forth, the judgment appealed from is affirmed, with costs against the appellants. So ordered,

Arellano, C. J., Mapa, Johnson, and Carson, JJ., concur.


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