EN BANC

[G.R. No. 10690. August 17, 1915. ]

THE UNITED STATES, Plaintiff-Appellee, v. REGINO NORIEGA and GORGONIA
TOBIAS, Defendants. REGINO NORIEGA, Appellant.
G. E. Campbell for Appellant.
Attorney-General Avancea for Appellee.
SYLLABUS
1. ADULTERY; CIVIL DAMAGES IN CRIMINAL ACTION. Held: That the offended
person in a criminal action for adultery is not entitled to recover indemnity. The Penal Code
contains no provision for indemnity in cases of adultery in a criminal action. There is no law
which permits the allowance o civil damages, an indemnity, as a part of the criminal procedure
in cases of adultery. Act No. 1773 provides for a civil action for damages in cases of adultery,
but the civil action is a separate and independent action from the criminal action. The aggrieved
person, or such persons parents, grandparents, or guardian, may bring a civil action and recover
civil damages from the guilty person in cases of adultery. The civil action must be a separate and
distinct action from the criminal action.
2. CRIMINAL LAW; REVIEW; QUESTIONS PASSED "SUB SILENTIO." Generally
speaking, it may be said that passing a point or question sub silentio may be evidence of consent
or conformity yet, nevertheless, the fact that the courts have passed unnoticed particular
questions not raised or discussed by the parties does not thereby ipso facto become binding on
the court; neither should such questions decided in that manner be considered as a precedent,
until the question has been squarely presented to the court and passed upon.
DECISION
JOHNSON, J. :
The present criminal proceedings were commenced by the presentation of a complaint by
Gaudencio Tesoro, the husband of the said Gorgonia Tobias, in the court of the justice of the
peace of the municipality of Santa Cruz. A preliminary examination was held by said justice of
the peace and the defendants were held for trial by the Court of First Instance. Later the cause
was brought on for trial in the Court of First Instance. The defendants were duly arraigned. Upon
arraignment each plead not guilty. Later the defendant, Gorgonia Tobias, asked for and obtained
permission from the court to withdraw her plea of not guilty and to substitute therefor the plea of
guilty. The trial proceeded against the defendant, Regino Noriega, at the close of which the
Honorable Pedro Concepcion, judge, found each of the defendants guilty of the crime charged
and sentenced the defendant, Regino Noriega, to be imprisoned for a period of five years of

prision correccional, with the accessory penalties provided for by law, to indemnify the offended
person in the sum of P500, and in case of insolvency to suffer subsidiary imprisonment in
accordance with the provisions of the law, and to pay one-half the costs. Gorgonia Tobias was
sentenced to be imprisoned for a period of one year and six months of prision correccional with
the accessory penalties provided for by the law, and to pay one-half the costs. From that sentence
the defendant Regino Noriega appealed to this court and made several assignments of error. All
of the assignments of error relating to the appellant present questions of fact only.
An examination of the record brought to this court shows, beyond a reasonable doubt, that the
defendant and appellant is guilty of the crime charged in the complaint. In view of the very
careful analysis of the proof made by the lower court we find no reason now for analyzing the
same again. The defendant and appellant has been informed of the facts upon which the lower
court relied for its conclusions. A restatement of the facts, in our judgment, can serve no good
purpose.
There is one question, however, presented by the decision of the lower court which neither the
appellant nor the appellee has discussed. The lower court imposed a fine of indemnity against the
appellant in the sum of P500. We are unable to find any provision of law justifying a judgment
of indemnity in cases like the present. There was no foundation laid in the complaint for
indemnity neither was there any proof adduced during the trial of the cause supporting the
conclusion of the lower court in that respect That part of the sentence of the lower court must
therefore be revoked.
After a careful examination of the evidence brought to this court and considering the fact that the
defendant had been treated with special confidence by the offended person, by taking him into
his house and furnishing him with food and lodging, we are of the opinion that that fact should
be treated as a special aggravating circumstance, and that the defendant should be punished with
the maximum penalty provided for by the law. The sentence of five years of imprisonment fixed
by the lower court is within the maximum grade. It is, therefore, hereby ordered and decreed that
a judgment be entered sentencing the defendant to be imprisoned for a period of five years of
prision correccional, with the accessory penalties of the law, and to pay the costs of this action
and one-half the costs in the lower court. So ordered.
Arellano, C.J., Torres, Carson, Trent and Araullo, JJ., concur.
DECISION ON MOTION FOR REHEARING. OCTOBER 14, 1915.
JOHNSON, J. :
The defendants were charged with the crime of adultery. They were each found guilty and
sentenced. The defendant Regino Noriega appealed to this court. The lower court found him
guilty of the crime charged and sentenced him to be imprisoned for a period of five years of
prision correccional, with the accessory penalties provided for by the law, and to indemnify the
offended person in the sum of P500, and to pay the costs. The said offended person was the
husband of Gorgonia Tobias. This court, upon a consideration of the appeal, modified the
sentence of the lower court, relieving the appellant of the necessity of paying the indemnity of

P500 for the following reasons: first, that there is no law justifying a judgment for indemnity in
favor of offended persons in criminal action for adultery; and second, that there was no
foundation laid in the complaint for indemnity neither was there any proof adduced during the
trial of the cause supporting a judgment for the sale.
Later the offended person, Gaudencio Tesoro, the husband of Gorgonia Tobias, presented a
motion for a rehearing, basing the same upon two grounds: first, that no objection had been made
by the appellant to that part of the sentence of the lower court imposing the said indemnity of
P500; that no assignment of error had been made by the appellant; and that this court, by virtue
of Rule 20, had inhibited itself from considering said alleged error by providing that no errors
except those affecting the jurisdiction would be considered, unless stated in the assignments of
error relied upon in the brief; and second, that the Supreme Court had already established the
doctrine in the case of United States v. Destrito (23 Phil. Rep., 28) that indemnity in cases like
the present might be imposed in favor of the offended person.
With reference to the first ground of the motion it may be said that Rule 20 does not apply to
criminal cases. The appellants in criminal cases are not required to make assignments of error.
Criminal cases, in fact, are tried de novo in the Supreme Court, that is to say, while the evidence
is not taken again in the Supreme Court, all of the evidence adduced during the trial of the cause
is again examined. (U. S. v. Kepner, 1 Phil. Rep., 519; 195 U. S., 100; 11 Phil. Rep., 669.) It
would follow therefore that the Supreme Court has a right to take notice of every error in fact or
in law committed by the lower court, even though the same is not set out in an assignment of
error by the Appellant.
With reference to the second ground of the motion for a rehearing it may be said, first, that the
only authority cited by the appellant in support of his motion is the said case of United States v.
Destrito (supra). While in that case the lower court did impose indemnity against the convicted
persons and in favor of the offended person, it will be noted upon reading the decision of this
court that that question was not discussed. Inasmuch as the question was not discussed we do not
consider that decision as constituting a precedent in favor of the doctrine contended for here by
the offended person. Where a question passes the court sub silentio, the case in which the
question is so passed is not binding on the court and should not be considered a precedent.
(McGirr v. Hamilton and Abreu, 30 Phil. Rep 563; U. S. v. More, 3 Cranch, 159, 172; Cannon v.
U S 116 U. S., 55; Snow v. U. S., 118 U. S., 346, 354; U. S v. Sanges, 144 U. S., 310, 317;
Louisville Trust Co. v. Knott, 191 U. S., 225; Cross v. Burke, 146 U. S., 82.)
Having reached the conclusion that the case of United States v. Destrito does not constitute a
precedent upon the question which we are now discussing, we shall examine the provisions of
the law for the purpose of ascertaining whether or not there is any law justifying indemnity in
favor of the offended person in the crime of adultery.
Title IX of the Penal Code treats of "crimes against chastity." Chapter I of said title treats of the
crime of adultery. Chapter II treats of the crime of rape and unnatural crimes. Chapter III treats
of crimes of public scandal. Chapter IV treats of the crimes of seduction and corruption of
minors. Chapter V treats of the crime of abduction. The last chapter of said title contains
"provisions common to the preceding chapters" and of course of the chapters of title IX.

From an examination of each of the chapters relating to the different crimes against chastity, we
find no provision justifying the courts in imposing indemnity in favor of the offended person. In
chapter VI, under the provisions common to the other chapters of title IX, we find that article
449 provides for indemnity against the persons found guilty of rape, seduction, or abduction.
Nowhere is there any provision in the Penal Code for indemnity in case of adultery. Neither have
we found any decisions of the supreme court of Spain allowing indemnity in cases like the
present.
Act No. 1773 of the United States Philippine Commission however provides for indemnity or
damages in cases like the present. Said Act however provides that the persons injured may bring
a civil action and recover therein civil damages from the guilty person. Said Act further provides
that the action for civil damages shall be deemed to be an additional remedy, apart from any
other remedies which the existing law may afford. (Act No. 1773, sec. 3.) It is clear that said Act
provides that the civil damages provided for therein shall be recovered in a separate and distinct
civil action and not as an incident to the criminal action, for the reason that said Act provides
that: "Nothing herein contained shall be so construed as to revoke, repeal, or modify any other
civil remedy which the existing law, in such cases, affords." In other words, in each of the crimes
provided for in title IX of the Penal Code in which there existed a civil remedy, the same is not
affected by the additional civil action provided for by section 3 of Act No. 1773.
After a careful consideration of the law and the facts, we have reached the following
conclusions: first, that there is no law applicable here which permits the allowance of civil
damages, as indemnity, as a part of the criminal procedure in case of adultery; second, that Act
No. 1773 provides for a civil action for damages in a case of adultery, which civil action is a
separate and independent action from the criminal action. Said Act provides that the aggrieved
person, or such persons parents, grandparents, or guardian, may also bring a civil action and
recover therein civil damages from the guilty person.
This provision, in our judgment, clearly contemplates that an action for damages in a case of
adultery must be a separate and distinct action from the criminal action, the same as in a case of
libel. (Ocampo v. Jenkins, 14 Phil. Rep., 681.)
For all of the foregoing reasons the motion for a rehearing is denied.
Arellano, C.J., Torres, Carson and Araullo, JJ., concur.