An alleged concubine In 1910

By Atty. Rolex T. Suplico

 

This interesting case – THE UNITED STATES, Plaintiff-Appellee, v. JUAN CASIPONG and GREGORIA HONGOY, Defendants-Appellants, G. R. No. 6608 – was decided by the Supreme Court en banc on September 5, 1911, involving a woman accused of being a concubine.

The case started when Juan married Teodora on Mar. 5, 1909. After 2 weeks, the couple separated. Juan “left his wife and removed to the barrio of Bolocboloc to live with Gregoria Hongoy, whereupon the offended wife went to live at her mother’s. For the purpose of assuring herself that her husband was really living with another woman, according to rumors she had heard, the offended wife went in company with one Hilaria Lumban to said barrio, where she actually saw her husband, Casipong, maintaining marital relations with the aforesaid Gregoria Hongoy, and although she did not see them in carnal intercourse, still she saw the two lying side by side and on several occasions going together to different places in that barrio, and that there was no one besides them in the house where they lived.”

On Aug. 24, 1910, the Provincial Fiscal (Now, the Provincial Prosecutor) filed a complaint in the Court of First Instance (CFI, now the Regional Trial Court or the RTC) of Cebu, charging Juan and Gregoria with the crime of concubinage, punishable under Art. 437 of the Penal Code. Thus:

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

 

The CFI “rendered decision the same day, sentencing the defendant Casipong to one year eight months and twenty-one days of prision correccional, and the defendant Gregoria Hongoy to two years of banishment, prohibiting her during the period of the sentence from going within a radius of 25 kilometers of the place where the crime was committed, the barrio of Bituon, pueblo of Dumanjug; with half the costs against each party. From this judgment the defendants appealed, but later Casipong withdrew his appeal, x x x.”

Since Juan withdrew his appeal, the judgement is final in his case, while it continues with respect to Gregoria.

The Supreme Court explained under Art. 437 of the Penal Code, “it is an indispensable condition for convicting the husband of concubinage outside of his home that his conduct produce scandal and set a bad example among his neighbors, and, x x x (the) publicity of an immoral act produces scandal, for by the bad example set it gives offense and wounds the virtuous sentiments of others. x x x.”

“The unlawful union of a married man with a woman not his wife,” the Court continued, “when the two live within a town and in the same house as lawful husband and wife, go together through the streets of the town, frequent places where large crowds gather, and commit acts in plain sight of the community without caution and with effrontery, is a procedure that gives rise to criticism and general protest among the neighbors and by its bad example offends the conscience and feelings of every moral person; and when these conditions attend the conduct of a married person it is indubitable that his concubinage with another woman, even though she does not live in his home, carries with it the circumstance of scandal required by the law to make his action criminal.”

The Court added that “in order to regard (these acts) as criminal it is necessary and indispensable that they be performed by a married man and a woman, or by both, the man being the active and the woman the passive agent, each with separate responsibility. Therefore, notwithstanding the man’s withdrawal of his appeal and the fact that the appeal taken by Gregoria Hongoy will alone be the subject of the decision, yet the arguments bearing upon the perpetration of the crime and proof of it will necessarily affect the man who is the alleged active agent thereof.”

The Court applied these principles and held that,

“(I)t is impossible to affirm that Juan, x x x, has been living in concubinage with public scandal with another woman, Gregoria x x x, because of lack of conclusive proof demonstrating the reality of the crime with the conditions the law requires for punishing the perpetrator thereof and his concubine. x x x. The statement of the offended wife and of the witness Hilaria Lumban, who only once saw them together, is not sufficient to prove the aggregate of acts performed by the two accused, with the scandal produced by the bad example set in their neighborhood. x x x. There should be an effort (by the fiscal or public prosecutor) to submit at the trial the best and strongest evidence available, wherefrom must necessarily appear either the guilt or the complete innocence of the accused.”

The Supreme Court acquitted Gregoria. As to Juan, who “is now serving sentence for a crime which is held in this decision to be not proven, this case should be respectfully brought to the attention of the Honorable, the Governor-General, so that, if he deem it just and expedient, he may pardon the said Casipong. So ordered.“

Now, was the Court’s holding in 1911 still applicable at this time? The law then was the Penal Code. It was repealed by Act No. 3815 or the Revised Penal Code, which  took effect on December 8, 1930. The Revised Penal Code provides,

“Art. 334. Concubinage. — Any husband who shall keep a mistress in the conjugal dwelling, or shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place, shall be punished by prision correccional in its minimum and medium periods.” (chanrobles virtual law library)

“The concubine shall suffer the penalty of destierro.” (chanrobles virtual law library)

My dear Reader, the law has undergone drastic and subtle changes.

The Penal Code provided only for 2 instances where the crime of concubinage may take place. Thus:

“The husband who shall keep a concubine (1) in his home, or (2) out of it with scandal, x x x.”

The Revised Penal Code provides 3 instances. Thus:

“Any husband who shall keep a mistress (1) in the conjugal dwelling, (2) or shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, (3) or shall cohabit with her in any other place, x x x.”

If this case happened under Art. 334 of the Revised Penal Code, Juan and Gregoria would have been charged and convicted under the third instance – “shall cohabit with her under any other place.”  “Cohabit” means to live together as if married, without legal or religious sanction The element of “under scandalous circumstance” is not required in the third instance. It is only required in the second instance.

Please note the subtle changes, which means the same, from concubine to mistress and from banishment to destierro. These changes, I think, reflect the political correctness of the timeline.

My dear Reader, you may ask: What is sexual intercourse under scandalous circumstances? This one is a tough nut to crack. You can cite the example of Juan and Gregoria but they would have been acquitted, if they were charged under the second instance, under the facts of their case. Remember that they were never seen in “carnal intercourse”? Truth to tell, I have yet to read a Supreme Court decision interpreting it.

Meantime, let us, my dear Reader, treat this particular provision of the Revised Penal Code as some sort of abomination from the distant past – a weird creature belonging to the Jurassic Park and a denizen only of our fertile imagination.