from May 25, 1960 until the amount is fully paid, plus

NATIONAL MARKETING CORPORATION, plaintiff- P500.00 for attorney's fees, and plus costs;
appellant, vs. MIGUEL D. TECSON, ET AL., "(b) Ordering defendant Miguel D. Tecson to indemnify his
defendants, MIGUEL D. TECSON, defendant- co-defendant Alto Surety & Insurance Co., Inc. on the
cross-claim for all the amounts it would be made to pay in
appellee, THE INSURANCE COMMISSIONER,
this decision, in case defendant Alto Surety & Insurance
petitioner. Co., Inc. pay the amount adjudged to plaintiff in this
G.R. No. L-29131 | 1969-08-27 decision. From the date of such payment defendant Miguel
D. Tecson would pay the Alto Surety & Insurance Co., Inc.,
Republic of the Philippines interest at 12% per annum until Miguel D. Tecson has fully
SUPREME COURT reimbursed plaintiff of the said amount."
Manila
Copy of this decision was, on November 21, 1955, served
EN BANC upon the defendants in said case. On December 21, 1965,
the National Marketing Corporation, as successor to all the
DECISION properties, assets, rights and chooses in action of the Price
Stabilization Corporation, as plaintiff in that case and
judgment creditor therein, filed, with the same court, a
CONCEPCION, J.: complaint, docketed as Civil Case No. 63701 thereof,
against the same defendants, for the revival of the
This appeal has been certified to us by the Court of judgment rendered in said Case No. 20520. Defendant
Appeals, only one question of law being involved therein. Miguel D. Tecson moved to dismiss said complaint, upon
the ground of lack of jurisdiction over the subject-matter
On November 14, 1955, the Court of First Instance of thereof and prescription of action. Acting upon the motion
Manila rendered judgment, in Civil Case No. 20520 and plaintiff's opposition thereto, said Court issued, on
thereof, entitled "Price Stabilization Corporation vs. Miguel February 14, 1966, an order reading:
D. Tecson and Alto Surety and Insurance Co., Inc.," the
dispositive part of which reads as follows. "Defendant Miguel Tecson seeks the dismissal of the
complaint on the ground of lack of jurisdiction and
"For the foregoing consideration, the Court decides this prescription. As for lack of jurisdiction, as the amount
ease: involved is less than P10,000 as actually these
proceedings are a revival of a decision issued by this same
"(a) Ordering the defendants Miguel D. Tecson, and Alto court, the matter of jurisdiction must be admitted. But as
Surety & Insurance Co. Inc. to pay jointly and severally for prescription. Plaintiffs admit the decision of this Court
plaintiff PRATRA the sum of P7,200.00 plus 7% interest became final on December 21,1955. This case was filed
exactly on December 21, 1965 - but more than ten years expired on December 19, 1965. The lower court accepted
have passed a year is a period of 365 days (Art. 13, CCP). this view in its appealed order of dismissal.
Plaintiff forgot that 1960, 1964 were both leap years so
that when this present case was filed it was filed two days Plaintiff-appellant insists that the same "is erroneous,
too late. because a year means a calendar year (Statutory
Construction, Interpretation of Laws, by Crowford, p. 383)
"The complaint insofar as Miguel Tecson is concerned is, and since what is being computed here is the number of
therefore, dismissed as having prescribed." years, a calendar year should be used as the basis of
computation. There is no question that when it is not a
The National Marketing Corporation appealed from such leap year, December 21 to December 21 of the following
order to the Court of Appeals, which, on March 20, 1969, year is one year. If the extra day in a leap year is not a
certified the case to this Court, upon the ground that the day of the year, because it is the 366 day, then to what
only question therein raised is one of law, namely, whether year does it belong? Certainly, it must belong to the year
or not the present action for the revival of a judgment is where it falls and, therefore, that the 366 days constitute
barred by the statute of limitations. one year." 2

Pursuant to Art. 1144-(3) of our Civil Code, an action upon The very conclusion thus reached by appellant shows that
a judgment "must be brought within ten years-from the its theory contravenes the explicit provision of Art. 13 of
time the right of action accrues," which, in the language the Civil Code of the Philippines, limiting the connotation
of Art. 1152 of the same Code, "commences from the time of each "year" - as the term is used in our laws - to 365
the judgment sought to be revived has become final." days. Indeed, prior to the approval of the Civil Code of
This, in turn, took place on December 21, 1955, or thirty Spain, the Supreme Court thereof had held, on March 30,
(30) days from notice of the judgment - which was 1887, that, when the law spoke of months, it meant a
received by the defendants herein on November 21, 1955 "natural" month or "solar" month, in the absence of
- no appeal having been taken therefrom. 1 The issue is express provision to the contrary. Such provision was
thus confined to the date on which ten (10) years from incorporated into the Civil Code of Spain, subsequently
December 21, 1955 expired. promulgated. Hence, the same Supreme Court
declared 3 that, pursuant to Art. 7 of said Code, "'whenever
Plaintiff-appellant alleges that it was December 21, 1965, months . . . are referred to in the law, it shall be
but appellee Tecson maintains otherwise, because "when understood that the months, are of 30 days", not the
the laws speak of years . . . it shall be understood that "natural", "solar" or "calendar" months, unless they are
years are of three hundred sixty-five days each" - "designated by name," in which case "they shall be
according to Art. 13 of our Civil Code - and, 1960 and 1964 computed by the actual number of days they have." This
being leap years, the month of February in both had 29 concept was, later, modified in the Philippines, by Section
days, so that ten (10) years of 365 days each, or an 13 of the Revised Administrative Code, pursuant to which,
aggregate of 3,650 days, from December 21, 1955, "month shall be understood to refer to a calendar
month." 4 In the language of this Court, in People vs. Del
Rosario, 5 "with the approval of the Civil Code of the 1. Sec. 1, Rule 39, in relation o Sec. 3, Rule 31, Rules of
Philippines (Republic Act 386) . . . we have reverted to the Court.
provisions of the Spanish Civil Code in accordance with
which a month is to be considered as the regular 30-day 2. Italics ours.
month . . . and not the solar or civil month," with the
particularity that, whereas the Spanish Code merely 3. Decision of April 6, 1895.
mentioned "months, days or nights," ours has added
thereto the term "years " and explicitly ordains that "it 4. Guzman v. Lichauco, 42 Phil. 292; Gutierrez v. Carpio,
shall be understood that years are of three hundred sixty- 53 Phil. 334, 335-336.
five days."
5. 97 Phil 70-71
Although some members of the Court are inclined to think
that this legislation is not realistic, for failure to conform
with ordinary experience or practice, the theory of
plaintiff-appellant herein cannot be upheld without MANUELA BARRETTO GONZALEZ, plaintiff-
ignoring, if not nullifying, Art. 13 of our Civil Code, and
reviving Section 13 of The Revised Administrative Code, appellee, vs. AUGUSTO C. GONZALEZ, defendant-
thereby engaging in judicial legislation, and, in effect, appellant. AUGUSTO C. GONZALEZ, JR., ET AL.,
repealing an act of Congress. If public interest demands a
reversion to the policy embodied in the Revised
intervenors-appellees.
Administrative Code, this may be done through legislative G.R. No. 37048 | 1933-03-07
process, not by judicial decree.
DECISION
WHEREFORE, the order appealed from should, as it is
hereby affirmed, without costs. It is so ordered. HULL, J:

Dizon, Makalintal, Sanchez, Castro, Fernando, Capistrano, Plaintiff and defendant are citizens of the Philippine Islands
and at present residents of the City of Manila. They were
Teehankee and Barredo, JJ., concur.
married in the City of Manila on January 19, 1919, and
Reyes, J.B.L. and Zaldivar, JJ., are on official leave lived together as man and wife in the Philippine Islands
abroad. until the Spring of 1926. They voluntarily separated and
since that time have not lived together as man and wife.
Of this union four children were born who are now 11, 10,
_________________ 8, and 6 years of age. Negotiations between the parties,
both being represented by attorneys, continued for several
months, whereupon it was mutually agreed to allow the
plaintiff for her support and that of her children, five immediately after the dissolution of the community of
hundred pesos (P500) monthly; this amount to be property."
increased in case of illness or necessity, and the title of
certain properties to be put in her name. Shortly after this be enforced, and that she and the defendant deliver to the
agreement the husband left the Islands, betook himself to guardian ad litem the equivalent of what would have been
Reno, Nevada, and secured in that jurisdiction an absolute due to their children as their legal portion from the
divorce on the ground of desertion, which decree was respective estates had their parents died intestate on
dated November 28, 1927. Shortly thereafter the November 28, 1927. It is also prayed that the community
defendant moved to California and returned to these existing between plaintiff and defendant be declared
Islands in August 1928, where he has since remained. On dissolved and the defendant be ordered to render an
the same date that he secured the divorce in Nevada he accounting and to deliver to the plaintiff her share of the
went through the forms of marriage with another citizen community property, that the defendant be ordered to pay
of these Islands and now has three children as a result of the plaintiff alimony at the rate of five hundred pesos
that marriage. Defendant, after his departure from these (P500) per month, that the defendant be ordered to pay
Islands, reduced the amount he had agreed to pay the plaintiff, as counsel fees, the sum of five thousand
monthly for the support of his wife and four minor children pesos (P5,000), and that the defendant be ordered to pay
and has not made the payments fixed in the Reno divorce plaintiff the expenses incurred in educating the three
as alimony. minor sons.

Shortly after his return his wife brought action in the Court A guardian ad litem was appointed for the minor children,
of First Instance of Manila requesting that the courts of the and they appear as intervenors and join their mother in
Philippine Islands confirm and ratify the decree of divorce these proceedings. The Court of First Instance, after
issued by the courts of the State of Nevada; that section hearing, found against the defendant and granted
9 of Act No. 2710, which reads as follows: judgment as prayed for by plaintiff and intervenors, with
the exception of reducing attorneys fees to three thousand
"The decree of divorce shall dissolve the community of and also granted costs of the action against the defendant.
property as soon as such decree becomes final, but shall From this judgment defendant appeals and makes the
not dissolve the bonds of matrimony until one year following assignment of errors:
thereafter.
"I. The lower court erred in not declaring that paragraph
"The bonds of matrimony shall not be considered as 2 of section 9 of the Philippine Divorce Law, is
dissolved with regard to the spouse who, having legitimate unconstitutional, null and void.
children has not delivered to each of them or to the
guardian appointed by the court, within said period of one "II. The lower court erred in holding that section 9 of Act
year, the equivalent of what would have been due to them No. 2710 (Divorce Law) applies to the Nevada decree of
as their legal portion if said spouse had died intestate divorce issued in favor of appellant Augusto C. Gonzalez,
said decree being entitled to confirmation and recognition. Phil., 123); Gorayeb vs. Hashim (50 Phil., 22); Francisco
vs. Tayao (50 Phil., 42); Alkuino Lim Pang vs. Uy Pian Ng
"III. The lower court erred in not dismissing the complaint Shun and Lim Tingco (52 Phil., 571); and the late case of
in intervention for lack of cause of action against appellant Cousins Hix vs. Fluemer, decided March 21, 1931, and
and appellee. reported in 55 Phil., 851.

"IV. The lower court erred in not declaring the notice of lis The entire conduct of the parties from the time of their
pendens filed by intervenors to be null and void. separation until the case was submitted to this court, in
which they all prayed that the Reno divorce be ratified and
"V. The trial court erred in ordering the appellant to pay confirmed, clearly indicates a purpose to circumvent the
the sum of P500 per month for the support not only of his laws of the Philippine Islands regarding divorce and to
children but also of his ex-wife, appellee herein, Manuela secure for themselves a change of status for reasons and
Barretto. under conditions not authorized by our law. At all times
the matrimonial domicile of this couple has been within the
"VI. The trial court erred in not holding that plaintiff- Philippine Islands and the residence acquired in the State
appellee, Manuela Barretto, is not entitled to support from of Nevada by the husband for the purpose of securing a
her ex- husband, herein appellant, over and beyond the divorce was not a bona fide residence and did not confer
alimony fixed by the divorce decree Exhibit A. jurisdiction upon the court of that State to dissolve the
bonds of matrimony in which he had entered in 1919.
"VII. The trial court erred in condemning defendant- While the decisions of this court heretofore in refusing to
appellant to pay to plaintiff-appellee P3,000 attorney's recognize the validity of foreign divorce has usually been
fees. expressed in the negative and have been based upon lack
of matrimonial domicile or fraud or collusion, we have not
"VIII. The lower court erred in denying appellant's motion overlooked the provisions of the Civil Code now in force in
for new trial." these Islands. Article 9 thereof reads as follows:

While the parties in this action are in dispute over financial "The laws relating to family rights and duties, or to the
matters they are in unity in trying to secure the courts of status, condition, and legal capacity of persons, are
this jurisdiction to recognize and approve of the Reno binding upon Spaniards even though they reside in a
divorce. On the record here presented this can not be foreign country."
done. The public policy in this jurisdiction on the question
of divorce is clearly set forth in Act No. 2710, and the And article 11, the last part of which reads:
decisions of this court: Goitia vs. Campos Rueda (35 Phil.,
252); Garcia Valdez vs. Soteraña Tuason (40 Phil., 943- ". . . the prohibitive laws concerning persons, their acts
952); Ramirez vs. Gmur (42 Phil., 855); Chereau vs. and their property, and those intended to promote public
Fuentebella (43 Phil., 216); Fernandez vs. De Castro (48 order and good morals, shall not be rendered without
effect by any foreign laws or judgments or by anything
done or any agreements entered into in a foreign country." Avanceña, C.J., Street, Villamor, Ostrand, Abad Santos,
Vickers,
It is therefore a serious question whether any foreign Imperial and Butte, JJ., concur.
divorce, relating to citizens of the Philippine Islands, will
be recognized in this jurisdiction, except it be for a cause
and under conditions for which the courts of the Philippine
Islands would grant a divorce. The lower court in granting PASTOR B. TENCHAVEZ, plaintiff-appellant, vs.
relief as prayed for frankly stated that the securing of the
divorce, the contracting of another marriage and the VICENTA F. ESCAÑO, ET AL., defendants-appellees.
bringing into the world of innocent children brings about G.R. No. L-19671 | 1965-11-29
such a condition that the court must grant relief. The
hardships of the existing divorce laws of the Philippine Republic of the Philippines
Islands are well known to the members of the Legislature. SUPREME COURT
It is of no moment in this litigation what the personal views Manila
of the writer on the subject of divorce may be. It is the
duty of the courts to enforce the laws of divorce as written EN BANC
by the Legislature if they are constitutional. Courts have
no right to say that such laws are too strict or too liberal. DECISION

Litigants by mutual agreement can not compel the courts REYES, J. B. L., J.:
to approve of their own actions or permit the personal
relations of the citizens of these Islands to be affected by Direct appeal, on factual and legal questions, from the
decrees of foreign courts in a manner which our judgment of the Court of First Instance of Cebu, in its Civil
Government believes is contrary to public order and good Case No. R-4177, denying the claim of the plaintiff-
morals. Holding the above views it becomes unnecessary appellant, Pastor B. Tenchavez, for legal separation and
to discuss the serious constitutional question presented by one million pesos in damages against his wife and parents-
appellant in his assignment of error. in-law, the defendants-appellees, Vicente, Mamerto and
Mena 1 , all surnamed "Escaño" respectively. 2
The judgment of the Court of First Instance of the City of
Manila must therefore be reversed and defendant The facts, supported by the evidence of record, are the
absolved from the demands made against him in this following:
action. This, however, without prejudice to any right of
maintenance that plaintiff and the intervenors may have Missing her late-afternoon classes on 24 February 1948 in
against defendant. No special pronouncement as to costs. the University of San Carlos, Cebu City, where she was
So ordered. then enrolled as a second year student of commerce,
Vicenta Escaño, 27 years of age (scion of a well-to-do and
socially prominent Filipino family of Spanish ancestry and a recelebration to validate what he believed to be an
a "sheltered colegiala"), exchanged marriage vows with invalid marriage, from the standpoint of the Church, due
Pastor Tenchavez, 32 years of age, an engineer, ex-army to the lack of authority from the Archbishop or the parish
officer and of undistinguished stock, without the priest for the officiating chaplain to celebrate the
knowledge of her parents, before a Catholic chaplain, Lt. marriage. The recelebration did not take place, because
Moises Lavares, in the house of one Juan Alburo in the said on 26 February 1948 Mamerto Escaño was handed by a
city. The marriage was the culmination of previous love maid, whose name he claims he does not remember, a
affair and was duly registered with the local civil registrar. letter purportedly coming from San Carlos College
students and disclosing an amorous relationship between
Vicenta's letters to Pastor, and his to her, before the Pastor Tenchavez and Pacita Noel; Vicenta translated the
marriage indicate that the couple were deeply in love. letter to her father, and thereafter would not agree to a
Together with a friend, Pacita Noel, their matchmaker and new marriage. Vicenta and Pastor met that day in the
go-between, they had planned out their marital future house of Mrs. Pilar Mendezona. Thereafter, Vicenta
whereby Pacita would be the governess of their first-born; continued living with her parents while Pastor returned to
they started saving money in a piggy bank. A few weeks his job in Manila. Her letter of 22 March 1948 (Exh. "M"),
before their secret marriage, their engagement was while still solicitous of her husband's welfare, was not as
broken; Vicenta returned the engagement ring and endearing as her previous letters when their love was
accepted another suitor, Joseling Lao. Her love for Pastor aflame.
beckoned; she pleaded for his return and they reconciled.
This time they planned to get married and then elope. To Vicenta was bred in Catholic ways but is of a changeable
facilitate the elopement, Vicenta had brought some of her disposition and Pastor knew it. She fondly accepted her
clothes to the room of Pacita Noel in St. Mary's Hall, which being called a "jellyfish". She was not prevented by her
was their usual trysting place. parents from communicating with Pastor (Exh. 1-
Escaño"), but her letters became less frequent as the days
Although planned for the midnight following their passed. As of June, 1948 the newlyweds were already
marriage, the elopement did not, however, materialize estranged (Exh. "2-Escaño"). Vicenta had gone to
because when Vicenta went back to her classes after the Jimenez, Misamis Occidental, to escape from the scandal
marriage, her mother, who got wind of the intended that her marriage stirred in Cebu society. There, a lawyer
nuptials, was already waiting for her at the college. filed for her a petition, drafted by then Senator Emmanuel
Vicenta was taken home where she admitted that she had Pelaez, to annul her marriage. She did not sign the petition
already married Pastor. Mamerto and Mena Escaño were (Exh. "B-5"). The case was dismissed without prejudice
surprised, because Pastor never asked for the hand of because of her non-appearance at the hearing (Exh. "B-
Vicenta, and were disgusted because of the great scandal 4").
that the clandestine marriage would provoke (t.s.n., vol.
111, pp. 1105-06). The following morning, the Escaño On 24 June 1950, without informing her husband, she
spouses sought priestly advice. Father Reynes suggested applied for a passport, indicating in her application that
she was single, that her purpose was to study, that she
was domiciled in Cebu City, and that she intended to The appealed judgment did not decree a legal separation,
return after two years. The application was approved, and but freed the plaintiff from supporting his wife and to
she left for the United States. On 22 August 1950, she filed acquire property to the exclusion of his wife. It allowed the
a verified complaint for divorce against the herein plaintiff counterclaim of Mamerto Escaño and Mena Escaño for
in the Second Judicial District Court of the State of Nevada moral and exemplary damages and attorney's fees against
in and for the County of Washoe, on the ground of the plaintiff-appellant, to the extent of P45,000.00, and
"extreme cruelty, entirely mental in character". On 21 plaintiff resorted directly to this Court.
October 1950, a decree of divorce, "final and absolute",
was issued in open court by the said tribunal. The appellant ascribes, as errors of the trial court, the
following:
In 1951 Mamerto and Mena Escaño filed a petition with
the Archbishop of Cebu to annul their daughter's marriage 1. In not declaring legal separation; in not holding
to Pastor (Exh. "D"). On 10 September 1954, Vicenta defendant Vicenta F. Escaño liable for damages and in
sought papal dispensation of her marriage (Exh. "D-2"). dismissing the complaint;

On 13 September 1954, Vicenta married an American, 2. In not holding the defendant parents Don Mamerto
Russell Leo Moran, in Nevada. She now lives with him in Escaño and the heirs of Doña Mena Escaño liable for
California, and, by him, has begotten children. She damages;
acquired American citizenship on 8 August 1958.
3. In holding the plaintiff liable for and requiring him to
But on 30 July 1955, Tenchavez had initiated the pay the damages to the defendant parents on their
proceedings at bar by a complaint in the Court of First counterclaim; and
Instance of Cebu, and amended on 31 May 1956, against
Vicenta F. Escaño; her parents, Mamerto and Mena 4. In dismissing the complaint and in denying the relief
Escaño, whom he charged with having dissuaded and sought by the plaintiff.
discouraged Vicenta from joining her husband, and
alienating her affections, and against the Roman Catholic That on 24 February 1948 the plaintiff-appellant, Pastor
Church, for having, through its Diocesan Tribunal, decreed Tenchavez, and the defendant-appellee, Vicenta Escaño,
the annulment of the marriage, and asked for legal were validly married to each other, from the standpoint of
separation and one million pesos in damages. Vicenta our civil law, is clearly established by the record before us.
claimed a valid divorce from plaintiff and an equally valid Both parties were then above the age of majority, and
marriage to her present husband, Russell Leo Moran; while otherwise qualified; and both consented to the marriage,
her parents denied that they had in anyway influenced which was performed by a Catholic priest (army chaplain
their daughter's acts, and counterclaimed for moral Lavares) in the presence of competent witnesses. It is
damages.
nowhere shown that said priest was not duly authorized and the archbishop of Cebu. Moreover, the very act of
under civil law to solemnize marriages. Vicenta in abandoning her original action for annulment
and subsequently suing for divorce implies an admission
The chaplain's alleged lack of ecclesiastical authorization that her marriage to plaintiff was valid and binding.
from the parish priest and the Ordinary, as required by
Canon law, is irrelevant in our civil law, not only because Defendant Vicenta Escaño argues that when she
of the separation of the Church and State but also because contracted the marriage she was under the undue
Act 3613 of the Philippine Legislature (which was the influence of Pacita Noel, whom she charges to have been
marriage law in force at the time) expressly provided that in conspiracy with appellant Tenchavez. Even granting, for
- argument's sake, the truth of that contention, and
assuming that Vicenta's consent was vitiated by fraud and
"SEC. 1. Essential Requisites.-Essential requisites for undue influence, such vices did not render her marriage ab
marriage are the legal capacity of the contracting parties initio void, but merely voidable, and the marriage
and their consent." (Italics supplied) remained valid until annulled by a competent civil court.
This was never done, and admittedly, Vicenta's suit for
The actual authority of the solemnizing officer was thus annulment in the Court of First Instance of Misamis was
only a formal requirement, and, therefore, not essential to dismissed for non-prosecution.
give the marriage civil effects 3 and this is emphasized by
section 27 of said marriage act, which provided the It is equally clear from the record that the valid marriage
following: between Pastor Tenchavez and Vicenta Escaño remained
subsisting and undissolved under Philippine Law,
"SEC. 27. Failure to comply with formal requirements:-No notwithstanding the decree of absolute divorce that the
marriage shall be declared invalid because of the absence wife sought and obtained on 21 October 1950 from the
of one or several of the formal requirements of this Act if, Second Judicial District Court of Washoe County, State of
when it was performed, the spouses or one of them Nevada, on grounds of "extreme cruelty, entirely mental
believed in good faith that the person who solemnized the in character". At the time the divorce decree was issued,
marriage was actually empowered to do so, and that the Vicenta Escaño, like her husband, was still a Filipino
marriage was perfectly legal." citizen. 4 She was then subject to Philippine law, and
Article 15 of the Civil Code of the Philippines (Republic Act.
The good faith of all the parties to the marriage (and hence No. 386), already in force at the time, expressly provided:
the validity of their marriage) will be presumed until the
contrary is positively proved (Lao vs. Dee Tim, 45 Phil. "Laws relating to family rights and duties or to the status,
739, 745; Francisco vs. Jason, 60 Phil. 442, 448). It is well condition and legal capacity of person are binding upon
to note here that in the case at bar, doubts as to the the citizens of the Philippines, even though living abroad."
authority of the solemnizing priest arose only after the
marriage, when Vicenta's parents consulted Father Reynes
The Civil Code of the Philippines, now in force, does not not be nullified by acts of private parties (Civil Code, Art.
admit absolute divorce, quo ad vinculo matrimonii; and in 17, jam quot.); and additionally, because the mere
fact it does not even use that term, to further emphasize appearance of a non-resident consort can not confer
its restrictive policy on the matter, in contrast to the jurisdiction where the court originally had none (Arca vs.
preceding legislation that admitted absolute divorce on Javier, 95 Phil. 579).
grounds of adultery of the wife or concubinage of the
husband (Act 2710). Instead of divorce, the present Civil From the preceding facts and considerations, there flows
Code only provides for legal separation (Title IV, Book K, as a necessary consequence that in this jurisdiction
Arts. 97 to 108), and, even in that case, it expressly Vicenta Escaño's divorce and second marriage are not
prescribes that "the marriage bonds shall not be severed" entitled to recognition as valid; for her previous union to
(Art. 106, subpar. 1). plaintiff Tenchavez must be declared to be existent and
undissolved. It follows, likewise, that her refusal to
For the Philippine courts to recognize and give recognition perform her wifely duties, and her denial
or effect to a foreign decree of absolute divorce between of consortium and her desertion of her husband constitute
Filipino citizens would be a patent violation of the declared in law a wrong caused through her fault, for which the
public policy of the state, specially in view of the third husband is entitled to the corresponding indemnity (Civil
paragraph of Article 17 of the Civil Code that prescribes Code, Art. 2176). Neither an unsubstantiated charge of
the following: deceit, nor an anonymous letter charging immorality
against the husband constitute, contrary to her claim,
"Prohibitive laws concerning persons, their acts or adequate excuse. Wherefore, her marriage and
property and those which have for their object public cohabitation with Russell Leo Moran is technically
order, public policy and good customs, shall not be "intercourse with a person not her husband" from the
rendered ineffective by laws or judgments promulgated, standpoint of Philippine law, and entitles plaintiff-appellant
or by determinations or conventions agreed upon in a Tenchavez to a decree of "legal separation under our law,
foreign country." on the basis of adultery (Revised Penal Code, Art. 333).

Even more, the grant of effectivity in this jurisdiction to The foregoing conclusions as to the untoward effect of a
such foreign divorce decrees would, in effect, give rise to remarriage after an invalid divorce are in accord with the
an irritating and scandalous discrimination in favor of previous doctrines and rulings of this court on the subject,
wealthy citizens, to the detriment of those members of our particularly those that were rendered under our laws prior
polity whose means do not permit them to sojourn abroad to the approval of the absolute divorce act (Act 2710 of
and obtain absolute divorces outside the Philippines. the Philippine Legislature). As a matter of legal history,
our statutes did not recognize divorces a vinculo before
From this point of view, it is irrelevant that appellant 1917, when Act 2710 became effective: and the present
Pastor Tenchavez should have appeared in the Nevada Civil Code of the Philippines, in disregarding absolute
divorce court. Primarily because the policy of our law can divorces, in effect merely reverted to the policies on the
subject prevailing before Act 2710. The rulings, therefore, the answer to them was given in Barretto vs. Gonzales, 58
under the Civil Code of 1889, prior to the Act above- Phil. 667:
mentioned, are now fully applicable. Of these, the decision
in Ramirez vs. Gmur, 42 Phil. 855, is of particular interest. "The hardships of the existing divorce laws in the
Said this Court in that case: Philippine Islands are well known to the members of the
Legislature. It is the duty of the Courts to enforce laws of
"As the divorce granted by the French Court must be divorce as written by the Legislature if they are
ignored, it results that the marriage of Dr. Mory and Leona constitutional. Courts have no right to say that such laws
Castro, celebrated in London in 1905, could not legalize are too strict or too liberal." (p.72)
their relations; and the circumstance that they afterwards
passed for husband and wife in Switzerland until her death The appellant's first assignment of error is, therefore,
is wholly without legal significance. The claims of the Mory sustained.
children to participate in the estate of Samuel Bishop must
therefore de rejected. The right to inherit is limited to However, the plaintiff-appellant's charge that his wife's
legitimate, legitimated and acknowledged natural parents, Dr. Mamerto Escaño and his wife, the late Doña
children. The children of adulterous relations are wholly Mena Escaño, alienated the affection of their daughter and
excluded. The word "descendants" as used in Article 941 influenced her conduct toward her husband are not
of the Civil Code can not be interpreted to include supported by credible evidence. The testimony of Pastor
illegitimates born of adulterous relations." (Italics Tenchavez about the Escaño's animosity toward him
supplied) strikes us to be merely conjecture and exaggeration, and
are belied by Pastor's own letters written before this suit
Except for the fact that the successional rights of the was begun (Exh. "2- Escaño" and "2-Vicenta", Rec. on
children, begotten from Vicenta's marriage to Leo Moran App. pp. 270-274). In these letters he expressly
after the invalid divorce, are not involved in the case at apologized to the defendants for "misjudging them" and
bar, the Gmur case is authority for the proposition that for the "great unhappiness" caused by his "impulsive
such union is adulterous in this jurisdiction, and, therefore, blunders" and "sinful pride" "effrontery and audacity"
justifies an action for legal separation on the part of the (sic). Plaintiff was admitted to the Escaño house to visit
innocent consort of the first marriage, that stands and court Vicenta, and the record shows nothing to prove
undissolved in Philippine law. In not so declaring, the trial that he would not have been accepted to marry Vicenta
court committed error. had he openly asked for her hand, as good manners and
breeding demanded. Even after learning of the clandestine
True it is that our ruling gives rise to anomalous situations marriage, and despite their shock at such unexpected
where the status of a person (whether divorced or not) event, the parents of Vicenta proposed and arranged that
would depend on the territory where the question arises. the marriage be recelebrated in strict conformity with the
Anomalies of this kind are not new in the Philippines, and canons of their religion upon advice that the previous one
was canonically defective. If no recelebration of the
marriage ceremony was had it was not due to defendants respect to his child's marital relations, in the interest of his
Mamerto Escaño and his wife, but to the refusal of Vicenta child as he sees it, the marriage of his child not
to proceed with it. That the spouses Escaño did not seek terminating his right and liberty to interest himself in, and
to compel or induce their daughter to assent to the be extremely solicitous for, his child's welfare and
recelebration but respected her decision, or that they happiness, even where his conduct and advice suggest or
abided by her resolve, does not constitute in law an result in the separation of the spouses or the obtaining of
alienation of affections. Neither does the fact that a divorce or annulment, or where he acts under mistake
Vicenta's parents sent her money while she was in the or misinformation, or where his advice or interference are
United States; for it was natural that they should not wish indiscreet or unfortunate, although it has been held that
their daughter to live in penury even if they did not concur the parent is liable for consequences resulting from
in their decision to divorce Tenchavez (27 Am. Jur. pp. recklessness. He may in good faith take his child into his
130-132). home and afford him or her protection and support, so
long as he has not maliciously enticed his child away, or
There is no evidence that the parents of Vicenta, out of does not maliciously entice or cause him or her to stay
improper motives, aided and abetted her original suit for away, from his or her spouse. This rule has more
annulment, or her subsequent divorce; she appears to frequently been applied in the case of advice given to a
have acted independently and being of age, she was married daughter, but it is equally applicable in the case
entitled to judge what was best for her and ask that her of advice given to a son."
decisions be respected. Her parents, in so doing, certainly
can not be charged with alienation of affections in the Plaintiff Tenchavez, in falsely charging Vicenta's aged
absence of malice or unworthy motives, which have not parents with racial or social discrimination and with having
been shown, good faith being always presumed until the exerted efforts and pressured her to seek annulment and
contrary is proved. divorce, unquestionably caused them unrest and anxiety,
entitling them to recover damages. While his suit may not
"Sec. 529. Liability of Parents, Guardians or kin. - The law have been impelled by actual malice, the charges were
distinguishes between the right of a parent to interest certainly reckless in the face of the proven facts and
himself in the marital affairs of his child and the absence circumstances. Court actions are not established for
of right in a stranger to intermeddle in such affairs. parties to give vent to their prejudices or spleen.
However, such distinction between the liability of parents
and that of strangers is only in regard to what will justify In the assessment of the moral damages recoverable by
interference. A parent is liable for alienation of affections appellant Pastor Tenchavez from defendant Vicenta
resulting from his own malicious conduct, as where he Escaño, it is proper to take into account, against his
wrongfully entices his son or daughter to leave his or her patently unreasonable claim for a million pesos in
spouse, but he is not liable unless he acts maliciously, damages, that (a) the marriage was celebrated in secret,
without justification and from unworthy motives. He is not and its failure was not characterized by publicity or undue
liable where he acts and advises his child in good faith with humiliation on appellant's part; (b) that the parties never
lived together; and (c) that there is evidence that (2) That the remarriage of the divorced wife and her
appellant had originally agreed to the annulment of the cohabitation with a person other than the lawful husband
marriage, although such a promise was legally invalid, entitle the latter to a decree of legal separation
being against public policy (cf. Art. 88, Civ. Code). While conformably to Philippine law;
appellant is unable to remarry under our law, this fact is a
consequence of the indissoluble character of the union that (3) That the desertion and securing of an invalid divorce
appellant entered into voluntarily and with open eyes decree by one consort entitles the other to recover
rather than of her divorce and her second marriage. All damages;
told, we are of the opinion that appellant should recover
P25,000 only by way of moral damages and attorney's (4) That an action for alienation of affections against the
fees. parents of one consort does not lie in the absence of proof
of malice or unworthy motives on their part.
With regard to the P45,000 damages awarded to the
defendants, Dr. Mamerto Escaño and Mena Escaño, by the WHEREFORE, the decision under appeal is hereby
court below, we opine that the same are excessive. While modified, as follows:
the filing of this unfounded suit have wounded said
defendant's feelings and caused them anxiety, the same (1) Adjudging plaintiff-appellant Pastor Tenchavez entitled
could in no way have seriously injured their reputation, or to a decree of legal separation from defendant Vicenta F.
otherwise prejudiced them, lawsuits having become a Escaño;
common occurrence in present society. What is important,
and has been correctly established in the decision of the (2) Sentencing defendant-appellee Vicenta Escaño to pay
court below, is that said defendants were not guilty of any plaintiff-appellant Tenchavez the amount of P25,000 for
improper conduct in the whole deplorable affair. This damages and attorneys' fees;
Court, therefore, reduces the damages awarded to P5,000
only. (3) Sentencing appellant Pastor Tenchavez to pay the
appellee, Mamerto Escaño and the estate of his wife, the
Summing up, the Court rules: deceased Mena Escaño, P5,000 by way of damages and
attorney's fee
(1) That a foreign divorce between Filipino citizens, sought
and decreed after the effectivity of the present Civil Code Neither party to recover costs.
(Rep. Act No. 386), is not entitled to recognition as valid
in this jurisdiction; and neither is the marriage contracted Bengzon. C.J., Bautista Angelo, Concepcion, Dizon,
with another party by the divorced consort, subsequently Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ.,
to the foreign decree of divorce, entitled to validity in this concur.
country.
____________________
1. The latter was substituted by her heirs when she died Motion to Dismiss said case, and her Motion for
during the pendency of the case in the trial court. Reconsideration of the Dismissal Order, respectively.

2. The original complaint included the Roman Catholic The basic background facts are that petitioner is a citizen
Church as a defendant, sought to be enjoined from acting of the Philippines while private respondent is a citizen of
on a petition for the ecclesiastical annulment of the the United States; that they were married in Hongkong in
marriage between Pastor Tenchavez and Vicenta Escaño: 1972; that, after the marriage, they established their
the case against the defendant Church was dismissed on residence in the Philippines; that they begot two children
a joint motion. born on April 4, 1973 and December 18, 1975,
respectively; that the parties were divorced in Nevada,
3. In the present Civil Code the contrary rule obtains (Art. United States, in 1982; and that petitioner has re-married
53). also in Nevada, this time to Theodore Van Dorn.

4. She was naturalized as an American citizen only on 8 Dated June 8, 1983, private respondent filed suit against
August 1958. petitioner in Civil Case No. 1075-P of the Regional Trial
Court, Branch CXV, in Pasay City, stating that petitioner's
business in Ermita, Manila, (the Galleon Shop, for short),
ALICE REYES VAN DORN, petitioner, vs. HON. is conjugal property of the parties, and asking that
petitioner be ordered to render an accounting of that
MANUEL V. ROMILLO, JR., as Presiding Judge of business, and that private respondent be declared with
Branch CX, Regional Trial Court of the National right to manage the conjugal property. Petitioner moved
to dismiss the case on the ground that the cause of action
Capital Region Pasay City, and RICHARD UPTON, is barred by previous judgment in the divorce proceedings
respondents. before the Nevada Court wherein respondent had
acknowledged that he and petitioner had "no community
G.R. No. L-68470 | 1985-10-08 property" as of June 11, 1982. The Court below denied the
FIRST DIVISION Motion to Dismiss in the mentioned case on the ground
DECISION that the property involved is located in the Philippines so
that the Divorce Decree has no bearing in the case. The
MELENCIO-HERRERA, J.: denial is now the subject of this Certiorari proceeding.

In this Petition for Certiorari and Prohibition, petitioner Generally, the denial of a Motion to Dismiss in a civil case
Alice Reyes Van Dorn seeks to set aside the Orders, dated is interlocutory and is not subject to appeal. Certiorari and
September 15, 1983 and August 3, 1984, in Civil Case No. Prohibition are neither the remedies to question the
1075-P, issued by respondent Judge, which denied her propriety of an interlocutory order of the trial Court.
However, when a grave abuse of discretion was patently
committed, or the lower Court acted capriciously and regime. The pivotal fact in this case is the Nevada divorce
whimsically, then it devolves upon this Court in a certiorari of the parties.
proceeding to exercise its supervisory authority and to
correct the error committed which, in such a case, is The Nevada District Court, which decreed the divorce, had
equivalent to lack of jurisdiction. 1 Prohibition would then obtained jurisdiction over petitioner who appeared in
lie since it would be useless and a waste of time to go person before the Court during the trial of the case. It also
ahead with the proceedings. 2 We consider the petition obtained jurisdiction over private respondent who, giving
filed in this case within the exception, and we have given his address as No. 381 Bush Street, San Francisco,
it due course. California, authorized his attorneys in the divorce case,
Karp & Gradt, Ltd., to agree to the divorce on the ground
For resolution is the effect of the foreign divorce on the of incompatibility in the understanding that there were
parties and their alleged conjugal property in the neither community property nor community obligations. 3
Philippines. As explicitly stated in the Power of Attorney he executed
in favor of the law firm of KARP & GRAD LTD., 336 W.
Petitioner contends that respondent is estopped from Liberty, Reno, Nevada, to represent him in the divorce
laying claim on the alleged conjugal property because of proceedings:
the representation he made in the divorce proceedings
before the American Court that they had no community of xxx xxx xxx
property; that the Galleon Shop was not established
through conjugal funds; and that respondent's claim is "You are hereby authorized to accept service of Summons,
barred by prior judgment. to file an Answer, appear on my behalf and do all things
necessary and proper to represent me, without further
For his part, respondent avers that the Divorce Decree contesting, subject to the following:
issued by the Nevada Court cannot prevail over the
prohibitive laws of the Philippines and its declared national "1. That my spouse seeks a divorce on the ground of
policy; that the acts and declaration of a foreign Court incompatibility.
cannot, especially if the same is contrary to public policy,
divest Philippine Courts of jurisdiction to entertain matters "2. That there is no community of property to be
within its jurisdiction. adjudicated by the Court.

For the resolution of this case, it is not necessary to "3. That there are no community obligations to be
determine whether the property relations between adjudicated by the court.
petitioner and private respondent, after their marriage,
were upon absolute or relative community property, upon xxx xxx xxx" 4
complete separation of property, or upon any other
There can be no question as to the validity of that Nevada Thus, pursuant to his national law, private respondent is
divorce in any of the States of the United States. The no longer the husband of petitioner. He would have no
decree is binding on private respondent as an American standing to sue in the case below as petitioner's husband
citizen. For instance, private respondent cannot sue entitled to exercise control over conjugal assets. As he is
petitioner, as her husband, in any State of the Union. What bound by the Decision of his own country's Court, which
he is contending in this case is that the divorce is not valid validly exercised jurisdiction over him, and whose decision
and binding in this jurisdiction, the same being contrary to he does not repudiate, he is estopped by his own
local law and public policy. representation before said Court from asserting his right
over the alleged conjugal property.
It is true that owing to the nationality principle embodied
in Article 15 of the Civil Code, 5 only Philippine nationals To maintain, as private respondent does, that, under our
are covered by the policy against absolute divorces the laws, petitioner has to be considered still married to
same being considered contrary to our concept of public private respondent and still subject to a wife's obligations
policy and morality. However, aliens may obtain divorces under Article 109, et. seq. of the Civil Code cannot be just.
abroad, which may be recognized in the Philippines, Petitioner should not be obliged to live together with,
provided they are valid according to their national law. 6 observe respect and fidelity, and render support to private
In this case, the divorce in Nevada released private respondent. The latter should not continue to be one of
respondent from the marriage from the standards of her heirs with possible rights to conjugal property. She
American law, under which divorce dissolves the marriage. should not be discriminated against in her own country if
As stated by the Federal Supreme Court of the United the ends of justice are to be served.
States in Atherton vs. Atherton, 45 L. Ed. 794, 799:
WHEREFORE, the Petition is granted, and respondent
"The purpose and effect of a decree of divorce from the Judge is hereby ordered to dismiss the Complaint filed in
bond of matrimony by a court of competent jurisdiction Civil Case No. 1075-P of his Court.
are to change the existing status or domestic relation of
husband and wife, and to free them both from the bond. Without costs.
The marriage tie, when thus severed as to one party,
ceases to bind either. SO ORDERED.

A husband without a wife, or a wife without a husband, is Teehankee (Chairman), Plana, Relova Gutierrez, Jr., De la
unknown to the law. When the law provides, in the nature Fuente and Patajo, JJ., concur.
of a penalty, that the guilty party shall not marry again,
that party, as well as the other, is still absolutely freed ---------------
from the bond of the former marriage." Footnotes
1. Sanchez vs. Zosa, 68 SCRA 171 (1975); Malit vs. On September 7, 1979, petitioner Imelda Manalaysay
People, 114 SCRA 348 (1982). Pilapil, a Filipino citizen, and private respondent Erich
2. U.S.T. vs. Hon. Villanueva, et al., 106 Phil. 439 (1959). Ekkehard Geiling, a German national, were married before
3. Annex "Y", Petition for Certiorari. the Registrar of Births, Marriages and Deaths at
4. p. 98, Rollo. Friedensweiler in the Federal Republic of Germany. The
5. "Art. 15. Laws relating to family rights and duties or to marriage started auspiciously enough, and the couple
the status, condition and legal capacity of persons are lived together for some time in Malate, Manila where their
binding upon citizens of the Philippines, even though living only child, Isabella Pilapil Geiling, was born on April 20,
abroad." 1980. 1
6. cf. Recto vs. Harden, 100 Phil. 427 [1956]; Paras, Civil
Code, 1971 ed., Vol. I, p. 52; Salonga, Private Thereafter, marital discord set in, with mutual
International Law, 1979 ed., p. 231. recriminations between the spouses, followed by a
separation de facto between them.

After about three and a half years of marriage, such

IMELDA MANALAYSAY PILAPIL, petitioner, vs. HON. connubial disharmony eventuated in private respondent
initiating a divorce proceeding against petitioner in
CORONA IBAY-SOMERA, in her capacity as Germany before the Schoneberg Local Court in January,
Presiding Judge of the Regional Trial Court of 1983. He claimed that there was failure of their marriage
and that they had been living apart since April, 1982. 2
Manila, Branch XXVI; HON. LUIS C. VICTOR, in his
capacity as the City Fiscal of Manila; and ERICH Petitioner, on the other hand, filed an action for legal
separation, support and separation of property before the
EKKEHARD GEILING, respondents. Regional Trial Court of Manila, Branch XXXII, on January
G.R. No. 80116 | 1989-06-30 23, 1983 where the same is still pending as Civil Case No.
83-15866. 3
DECISION
On January 15, 1986, Division 20 of the Schoneberg Local
REGALADO, J.: Court, Federal Republic of Germany, promulgated a
decree of divorce on the ground of failure of marriage of
An ill-starred marriage of a Filipina and a foreigner which the spouses. The custody of the child was granted to
ended in a foreign absolute divorce, only to be followed by
petitioner. The records show that under German law said
a criminal infidelity suit of the latter against the former, court was locally and internationally competent for the
provides Us the opportunity to lay down a decisional rule divorce proceeding and that the dissolution of said
on what hitherto appears to be an unresolved jurisdictional marriage was legally founded on and authorized by the
question. applicable law of that foreign jurisdiction. 4
On June 27, 1986, or more than five months after the Petitioner thereafter filed a motion in both criminal cases
issuance of the divorce decree, private respondent filed to defer her arraignment and to suspend further
two complaints for adultery before the City Fiscal of Manila proceedings thereon. 10 As a consequence, Judge
alleging that, while still married to said respondent, Leonardo Cruz suspended proceedings in Criminal Case
petitioner "had an affair with a certain William Chia as No. 87-52434. On the other hand, respondent judge
early as 1982 and with yet another man named Jesus merely reset the date of the arraignment in Criminal Case
Chua sometime in 1983". Assistant Fiscal Jacinto A. de los No. 87-52435 to April 6, 1987. Before such scheduled
Reyes, Jr., after the corresponding investigation, date, petitioner moved for the cancellation of the
recommended the dismissal of the cases on the ground of arraignment and for the suspension of proceedings in said
insufficiency of evidence. 5 However, upon review, the Criminal Case No. 87-52435 until after the resolution of
respondent city fiscal approved a resolution, dated the petition for review then pending before the Secretary
January 8, 1986, directing the filing of two complaints for of Justice. 11 A motion to quash was also filed in the same
adultery against the petitioner. 6 The complaints were case on the ground of lack of jurisdiction, 12 which motion
accordingly filed and were eventually raffled to two was denied by the respondent judge in an order dated
branches of the Regional Trial Court of Manila. The case September 8, 1987. The same order also directed the
entitled "People of the Philippines vs. Imelda Pilapil and arraignment of both accused therein, that is, petitioner
William Chia", docketed as Criminal Case No. 87-52435, and William Chia. The latter entered a plea of not guilty
was assigned to Branch XXVI presided by the respondent while the petitioner refused to be arraigned. Such refusal
judge; while the other case, "People of the Philippines vs. of the petitioner being considered by respondent judge as
Imelda Pilapil and James Chua", docketed as Criminal direct contempt, she and her counsel were fined and the
Case No. 87-52434 went to the sala of Judge Leonardo former was ordered detained until she submitted herself
Cruz, Branch XXV, of the same court. 7 for arraignment. 13 Later, private respondent entered a
plea of not guilty. 14
On March 14, 1987, petitioner filed a petition with the
Secretary of Justice asking that the aforesaid resolution of On October 27, 1987, petitioner filed this special civil
respondent fiscal be set aside and the cases against her action for certiorari and prohibition, with a prayer for a
be dismissed. 8 A similar petition was filed by James Chua, temporary restraining order, seeking the annulment of the
her co-accused in Criminal Case No. 87-52434. The order of the lower court denying her motion to quash. The
Secretary of Justice, through the Chief State Prosecutor, petition is anchored on the main ground that the court is
gave due course to both petitions and directed the without jurisdiction "to try and decide the charge of
respondent city fiscal to inform the Department of Justice adultery, which is a private offense that cannot be
"if the accused have already been arraigned and if not yet prosecuted de officio (sic), since the purported
arraigned, to move to defer further proceedings" and to complainant, a foreigner, does not qualify as an offended
elevate the entire records of both cases to his office for spouse having obtained a final divorce decree under his
review. 9 national law prior to his filing the criminal complaint." 15
 party. The so-called exclusive and successive rule in the
On October 21, 1987, this Court issued a temporary prosecution of the first four offenses above mentioned do
restraining order enjoining the respondents from not apply to adultery and concubinage. It is significant that
implementing the aforesaid order of September 8, 1987 while the State, as parens partriae, was added and vested
and from further proceeding with Criminal Case No. 87- by the 1985 Rules of Criminal Procedure with the power to
52435. Subsequently, on March 23, 1988 Secretary of initiate the criminal action for a deceased or incapacitated
Justice Sedfrey A. Ordoñez acted on the aforesaid petitions victim in the aforesaid offenses of seduction, abduction,
for review and, upholding petitioner's ratiocinations, rape and acts of lasciviousness, in default of her parents,
issued a resolution directing the respondent city fiscal to grandparents or guardian, such amendment did not
move for the dismissal of the complaints against the include the crimes of adultery and concubinage. In other
petitioner. 16 words, only the offended spouse, and no other, is
authorized by law to initiate the action therefor.
We find this petition meritorious. The writs prayed for shall
accordingly issue. Corollary to such exclusive grant of power to the offended
spouse to institute the action, it necessarily follows that
Under Article 344 of the Revised Penal Code, 17 the crime such initiator must have the status, capacity or legal
of adultery, as well as four other crimes against chastity, representation to do so at the time of the filing of the
cannot be prosecuted except upon a sworn written criminal action. This is a familiar and express rule in civil
complaint filed by the offended spouse. It has long since actions; in fact, lack of legal capacity to sue, as a ground
been established, with unwavering consistency, that for a motion to dismiss in civil cases, is determined as of
compliance with this rule is a jurisdictional, and not merely the filing of the complaint or petition.
a formal, requirement. 18 While in point of strict law the
jurisdiction of the court over the offense is vested in it by The absence of an equivalent explicit rule in the
the Judiciary Law, the requirement for a sworn written prosecution of criminal cases does not mean that the same
complaint is just as jurisdictional a mandate since it is that requirement and rationale would not apply.
complaint which starts the prosecutory proceeding 19 and Understandably, it may not have been found necessary
without which the court cannot exercise its jurisdiction to since criminal actions are generally and fundamentally
try the case. commenced by the State, through the People of the
Philippines, the offended party being merely the
Now, the law specifically provides that in prosecutions for complaining witness therein. However, in the so-called
adultery and concubinage the person who can legally file "private crimes", or those which cannot be prosecuted de
the complaint should be the offended spouse, and nobody oficio, and the present prosecution for adultery is of such
else. Unlike the offenses of seduction, abduction, rape and genre, the offended spouse assumes a more predominant
acts of lasciviousness, no provision is made for the role since the right to commence the action, or to refrain
prosecution of the crimes of adultery and concubinage by therefrom, is a matter exclusively within his power and
the parents, grandparents or guardian of the offended option.
 complainant and the accused be unsevered and existing at
This policy was adopted out of consideration for the the time of the institution of the action by the former
aggrieved party who might prefer to suffer the outrage in against the latter.
silence rather than go through the scandal of a public trial.
20 Hence, as cogently argued by petitioner, Article 344 of American jurisprudence, on cases involving statutes in
the Revised Penal Code thus presupposes that the marital that jurisdiction which are in pari materia with ours, yields
relationship is still subsisting at the time of the institution the rule that after a divorce has been decreed, the
of the criminal action for adultery. This is a logical innocent spouse no longer has the right to institute
consequence since the raison d'etre of said provision of proceedings against the offenders where the statute
law would be absent where the supposed offended party provides that the innocent spouse shall have the exclusive
had ceased to be the spouse of the alleged offender at the right to institute a prosecution for adultery. Where,
time of the filing of the criminal case. 21 however, proceedings have been properly commenced, a
divorce subsequently granted can have no legal effect on
In these cases, therefore, it is indispensable that the the prosecution of the criminal proceedings to a
status and capacity of the complainant to commence the conclusion. 22
action be definitely established and, as already
demonstrated, such status or capacity must indubitably In the cited Loftus case, the Supreme Court of Iowa held
exist as of the time he initiates the action. It would be that
absurd if his capacity to bring the action would be
determined by his status before or subsequent to the " 'No prosecution for adultery can be commenced except
commencement thereof, where such capacity or status on the complaint of the husband or wife.' Section 4932,
existed prior to but ceased before, or was acquired Code. Though Loftus was husband of defendant when the
subsequent to but did not exist at the time of, the offense is said to have been committed, he had ceased to
institution of the case. We would thereby have the be such when the prosecution was begun; and appellant
anomalous spectacle of a party bringing suit at the very insists that his status was not such as to entitle him to
time when he is without the legal capacity to do so. make the complaint. We have repeatedly said that the
offense is against the unoffending spouse, as well as the
To repeat, there does not appear to be any local state, in explaining the reason for this provision in the
precedential jurisprudence on the specific issue as to when statute; and we are of the opinion that the unoffending
precisely the status of a complainant as an offended spouse must be such when the prosecution is
spouse must exist where a criminal prosecution can be commenced."
commenced only by one who in law can be categorized as
possessed of such status. Stated differently and with We see no reason why the same doctrinal rule should not
reference to the present case, the inquiry would be apply in this case and in our jurisdiction, considering our
whether it is necessary in the commencement of a criminal statutory law and jural policy on the matter. We are
action for adultery that the marital bonds between the convinced that in cases of such nature, the status of the
complainant vis-a-vis the accused must be determined as abroad, which may be recognized in the Philippines,
of the time the complaint was filed. Thus, the person who provided they are valid according to their national law . .
initiates the adultery case must be an offended spouse, .
and by this is meant that he is still married to the accused
spouse, at the time of the filing of the complaint. "Thus, pursuant to his national law, private respondent is
no longer the husband of petitioner. He would have no
In the present case, the fact that private respondent standing to sue in the case below as petitioner's husband
obtained a valid divorce in his country, the Federal entitled to exercise control over conjugal assets . . ." 25
Republic of Germany, is admitted. Said divorce and its
legal effects may be recognized in the Philippines insofar Under the same considerations and rationale, private
as private respondent is concerned 23 in view of the respondent, being no longer the husband of petitioner,
nationality principle in our civil law on the matter of status had no legal standing to commence the adultery case
of persons. under the imposture that he was the offended spouse at
the time he filed suit.
Thus, in the recent case of Van Dorn vs. Romillo, Jr., et
al., 24 after a divorce was granted by a United States court The allegation of private respondent that he could not
between Alice Van Dorn, a Filipina, and her American have brought this case before the decree of divorce for
husband, the latter filed a civil case in a trial court here lack of knowledge, even if true, is of no legal significance
alleging that her business concern was conjugal property or consequence in this case. When said respondent
and praying that she be ordered to render an accounting initiated the divorce proceeding, he obviously knew that
and that the plaintiff be granted the right to manage the there would no longer be a family nor marriage vows to
business. Rejecting his pretensions, this Court protect once a dissolution of the marriage is decreed.
perspicuously demonstrated the error of such stance, Neither would there be a danger of introducing spurious
thus: heirs into the family, which is said to be one of the reasons
for the particular formulation of our law on adultery, 26
"There can be no question as to the validity of that Nevada since there would thenceforth be no spousal relationship
divorce in any of the States of the United States. The to speak of. The severance of the marital bond had the
decree is binding on private respondent as an American effect of dissociating the former spouses from each other,
citizen. For instance, private respondent cannot sue hence the actuations of one would not affect or cast
petitioner, as her husband, in any State of the Union . . . obloquy on the other.

"It is true that owing to the nationality principle embodied The aforecited case of United States vs. Mata cannot be
in Article 15 of the Civil Code, only Philippine nationals are successfully relied upon by private respondent. In applying
covered by the policy against absolute divorces the same Article 433 of the old Penal Code, substantially the same
being considered contrary to our concept of public policy as Article 333 of the Revised Penal Code, which punished
and morality. However, aliens may obtain divorces adultery "although the marriage be afterwards declared
void", the Court merely stated that "the lawmakers issued in this case on October 21, 1987 is hereby made
intended to declare adulterous the infidelity of a married permanent.
woman to her marital vows, even though it should be
made to appear that she is entitled to have her marriage SO ORDERED.
contract declared null and void, until and unless she
actually secures a formal judicial declaration to that Melencio-Herrera, Padilla and Sarmiento, JJ., concur.
effect". Definitely, it cannot be logically inferred therefrom
that the complaint can still be filed after the declaration of
nullity because such declaration that the marriage is void ---------------
ab initio is equivalent to stating that it never existed. There Footnotes
being no marriage from the beginning, any complaint for
adultery filed after said declaration of nullity would no 1. Rollo, 5, 29.
longer have a leg to stand on. Moreover, what was 2. Ibid., 6, 29.
consequently contemplated and within the purview of the 3. Ibid., 7.
decision in said case is the situation where the criminal 4. Ibid., 7, 29-30; Annexes A and A-1, Petition.
action for adultery was filed before the termination of the 5. Ibid., 7, 178.
marriage by a judicial declaration of its nullity ab initio. 6. Ibid., 8; Annexes B, B-1 and B-2, id.
The same rule and requisite would necessarily apply where 7. Ibid., 8-9, 178.
the termination of the marriage was effected, as in this 8. Ibid., 9, 178; Annex C, id.
case, by a valid foreign divorce. 9. Ibid., 9-10, 178; Annex D, id.
10. Ibid., 9; Annexes E and E-1, id.
Private respondent's invocation of Donio-Teves, et al. vs. 11. Ibid., 10; Annex F, id.
Vamenta, herein before cited, 27 must suffer the same 12. Ibid., 9, 179; Annex G, id.
fate of inapplicability. A cursory reading of said case 13. Ibid., 10; Annex H, id.
reveals that the offended spouse therein had duly and 14. Ibid., 105.
seasonably filed a complaint for adultery, although an 15. Ibid., 11.
issue was raised as to its sufficiency but which was 16. Ibid., 311-313.
resolved in favor of the complainant. Said case did not 17. Cf. Sec. 5, Rule 110, Rules of Court.
involve a factual situation akin to the one at bar or any 18. People vs. Mandia, 60 Phil. 372, 375 (1934); People
issue determinative of the controversy herein. vs. Zurbano, 37 SCRA 565, 569 (1971); People vs.
Lingayen, G.R. No. 64556, June 10, 1988.
WHEREFORE, the questioned order denying petitioner's 19. Valdepeñas vs. People, 16 SCRA 871 (1966); People
motion to quash is SET ASIDE and another one entered vs. Babasa, 97 SCRA 672 (1980).
DISMISSING the complaint in Criminal Case No. 87-52435 20. Samilin vs. Court of First Instance of Pangasinan, 57
for lack of jurisdiction. The temporary restraining order Phil. 298 (1932); Donio-Teves, et al. vs. Vamenta, et al.,
133 SCRA 616 (1984).
21. Rollo, 289.
allegedly raped and who later died because of a foreign
22. 2 Am. Jur. 2d., 973 citing State vs. Loftus, 104 NW
906, 907; Re Smith, 2 Okla. 153, 37 p. 1099; State vs. object left inside her vaginal canal.
Russell, 90 Iowa 569, 58 NW 915.
23. Recto vs. Harden, 100 Phil. 427 (1956).
24. 139 SCRA 139, 140 (1985). Heinrich Stefan Ritter was charged with the crime of rape
25. The said pronouncements foreshadowed and are
adopted in the Family Code of the Philippines (Executive with homicide under an information which reads:
Order No. 209, as amended by Executive Order No. 227,
effective on August 3, 1988), Article 26 whereof provides
that "(w)here marriage between a Filipino citizen and a "That on or about the tenth (10th) day of October, 1986
foreigner is validly celebrated and a divorce is thereafter
in the City of Olongapo, Philippines, and within the
validly obtained abroad by the alien spouse capacitating
him or her to remarry, the Filipino spouse shall likewise jurisdiction of this Honorable Court, the above-named
have capacity to remarry under Philippine law."
26. U.S. vs. Mata, 18 Phil. 490 (1911). accused with lewd design and with intent to kill one
27. Footnote 20, ante. Rosario Baluyot, a woman under twelve (12) years of age,
did then and there wilfully, unlawfully and feloniously have
carnal knowledge of said Rosario Baluyot and inserted a
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
foreign object into the vaginal canal of said Rosario
HEINRICH S. RITTER, accused-appellant,
Baluyot which caused her death shortly thereafter, to the
G.R. No. 88582 | 1991-03-05
damage and prejudice of her relatives." (66)
Keywords
View Summary
When arraigned, the accused pleaded "Not
DECISION Guilty". Thereafter, the case was set for trial on the

GUTIERREZ, JR., J.: merits.

The appellant challenges his conviction of the crime To prove the guilt of the accused, the prosecutor
involving a young girl of about 12 years old who had been presented the following witnesses, namely: (1) Jessie
Ramirez, (2) Maria Burgos y Turla, (3) P/Cpl. Mariano boy and girl namely: Jessie Ramirez and Rosario Baluyot
Victoria, (4) Policarpio Baluyot, (5) Dr. Reino Rosete, (6) inside his hotel room at MGM Hotel along Magsaysay
Sumulong Daniel, (7) Jessica Herrera, (8) Sister Eva Drive, Olongapo City. These two (2) children were chosen
Palencia, (9) Conrado Salonga, (10) Dr. Devonne Loop, from among a bunch of street children. Once inside the
(11) Dr. Leo Cruz, (12) Paul Maclor, (13) Aida Sarmiento, hotel room accused told them to take a bath. Jessie
(14) Patricia Prollamanta, (15) Mel Santos, (16) Lorna Ramirez, alias 'Egan', was the first to take a bath and when
Limos, (17) Eduard Lee Bungarner, (18) Ronaldo Marquez, he came out Rosario Baluyot went to the bathroom to do
(19) Tom Bonte, (20) 2nd Asst. City Fiscal Nini Alcala, (21) the same. While Rosario Baluyot was inside the bathroom,
1st Asst. City Fiscal Dorentino Z. Floresta, (22) Corazon accused Ritter took out some pictures depicting dressed
Caber, (23) Rodolfo Mercurio and (24) Fe Israel. up young boys, and put them on top of the table. Other
things which were taken out and placed on top of a table
On the other hand, the defense offered in evidence were three (3) other objects which he described as like
Exhibits "1" to "24" and the testimonies of (1) Heinrich S. that of a vicks inhaler. One of these objects the accused
Ritter, (2) Father Roque Villanueva, (3) Angelita Amulong, played with his hands and placed it on his palms. The
(4) Gaspar Alcantara, (5) Dr. Val Barcinal and (6) Dr. color of which is grayish blue which turned out later to be
Pedro C. Solis. the foreign object which was inserted inside the vagina of
Rosario Baluyot. The other objects were later established
The facts of the case upon which the lower court based its to be anti-nasal inhalers against pollution purchased by
finding of guilt beyond reasonable doubt are summarized the accused in Bangkok when he went there as a
in its decision, as follows: tourist. While Rosario was in the bathroom, accused told
Ramirez to lay down on bed, and so did the accused. He
"The people's evidence show that on October 10, 1986 then started masturbating the young boy and also guided
about midnight, accused Heinrich Stefan Ritter brought a the boy's hand for him to be masturbated, so that they
masturbated each other, while they were both naked, and whether the object was already removed from her body
he gave Jessie Ramirez an erection. When Rosario and Rosario said 'Yes'. However, Jessie Ramirez claimed
Baluyot came out of the bathroom, she was told to remove that on the evening of that same date, he saw Rosario and
her clothes by accused and to join him in bed. The she was complaining of pain in her vagina and when Egan
accused then placed himself between the two (2) children asked her, she said that the foreign object was not yet
and accused started fingering Rosario. removed. Then there was another occasion wherein
Jessie was summoned and when he came he saw Rosario
At this time, Ramirez was already sleepy, but Rosario writhing in pain and when he tried to talk to Rosario she
touched him to call his attention. He looked, and he saw scolded him with defamatory remarks. Thereafter, he did
accused placing his penis against the vagina of Rosario not see Rosario anymore because he already went home
and that he was trying to penetrate the vagina but it would to his aunt's house who resided at Barrio Barretto and
not fit. After what he saw, Ramirez did not anymore resumed his studies in the primary grades.
bother to look because he was sleepy and fell asleep.
On May 14, 1987, Gaspar Alcantara, a defense witness,
The following morning, the accused, whom the juveniles while garbage scavenging at Lot 21, near the gate of the
described as an ‘American, paid Ramirez alias 'Egan' U.S. Naval Base saw Rosario at Magsaysay Drive near the
P200.00 and Rosario P300.00. He then left them in the Happy Bake Shop near Lot 21, being ogled by people
hotel. After the American left, they went downstairs, and because Rosario's skirt was bloodied and she was
Rosario told Egan that the American inserted something in unconscious and foul smelling. Since nobody helped
her vagina. But they could not do anything anymore, Rosario, he took pity on her condition and brought her to
because the American had already left, and neither did the Olongapo City General Hospital in an unconscious
they report the matter to the police. Sometime the condition, via jeepney. He went to the Information desk
following day, Jessie saw Rosario and he asked her and he was the one who gave the personal circumstances
of Rosario as to her name, age, her residence as more than one (1) year that he had regularly seen Rosario
Nagbakulaw, Lower Kalaklan, and Gaspar Alcantara signed at his brother's house, he must have already did come to
as 'guardian' of Rosario, while Rosario was already in the know the name of Rosario Baluyot including her age. In
emergency room. Although Gaspar Alcantara denied that his testimony in Court he stated that he even asked
he did not know the name of Rosario Baluyot when he Rosario for movie and softdrinks money which can safely
brought her to the hospital, this is belied by the testimony be concluded that he knows her very well. It is against
of the Information clerk Lorna Limos, who was then on normal behavior especially to a Filipino who have a
duty. Limos testified that it was Alcantara who supplied characteristic of curiosity not to have found out the real
the personal circumstances of Rosario. The Court gives name of the girl he claims to know only as ‘Tomboy’.
more credence to the testimony of Miss Limos as against
Gaspar Alcantara who became a defense witness, for the While Rosario Baluyot was confined at the Olongapo City
reason that through his own testimony, Gaspar Alcantara General Hospital, nobody was attending to her since she
claimed that even prior to May 14, 1987, he had already is a street child, having stowed away from the custody of
known Rosario Baluyot for more than one (1) year, her grandmother. Three (3) good samaritans who belong
because he has seen the said girl go to the house of his to religious and civic organizations, in the persons of
twin brother, Melchor Alcantara, who is his immediate Jessica Herrera, Fe Israel and Sr. Eva Palencia, in one of
neighbor. Rosario used to visit a girl by the name of 'Nora' their missions in the hospital chanced upon Rosario
who was then in the custody of his brother. His brother Baluyot who was all alone with no relatives attending to
Melchor was also living with their mother, brother and her and after finding out that she was only 12 years old
sister-in-law and their two (2) children in his decided to help her. After a short interview with Rosario,
house. Rosario as per Gaspar's testimony even stays for regarding her name and age only because she clamped up
one week or a few days at his brother's house when she about her residence and her relatives, they decided to help
visits Nora. So the Court can safely assume that of all the her by providing her the medicine she needed during her
confinement in readiness for an operation. It was Fe Israel when she was scheduled for operation on May 19, 1987,
who was able to get the name and age of Rosario Baluyot after the first attempt for an operation on May 17 was
from Rosario Baluyot herself when he saw her for the first aborted allegedly because the consent of Dr. Reino
time. For Fe Israel, the age of Rosario Baluyot was an Rosete, the hospital director was not obtained. The
important factor because their program assisted only surgeon who operated on her was Dr. Rosete himself. He
indigent patients from infants up to 13 years old. testified that Rosario had to be operated even in that
condition in order to save her life. Her condition was
Rosario's first ailment at the Olongapo City General guarded. This was corroborated by Dr. Leo Cruz, the
Hospital was loose bowel movement and vomiting, which anesthesiologist during Rosario's operation. It was in the
was first suspected as gastro-enteritis, but which came out evening of May 19 at about 7:00 p.m. when Dr. Rosete
later as symptoms of peritonitis due to a massive infection opened her abdomen by making a 5 inch incision on her
in the abdominal cavity. Subsequently, on May 17, 1987, stomach. He found out that the fallopian tubes were
after she was examined by the physicians at the hospital, congested with pus, and so with the peritonieum, and the
it was found out that there was a foreign object lodged in pelvic cavity, and patches of pus in the liver, although the
her vaginal canal and she had vaginal discharge tinged gallbladder and kidney appeared to have septicemia,
with blood and foul smelling odor emanating from her poisoning of the blood. The peritonitis and septicemia
body. One of the doctors who attended to her was Dr. were traced to have been caused through infection by the
Barcinal, an OB-GYNE. Dr. Barcinal tried to extract the foreign object which has been lodged in the intra-vaginal
foreign object by means of a forceps, but several attempts canal of Rosario. The foreign object which was already
proved futile because said object was deeply embedded in agreed upon by both parties that it is a portion of a sexual
the vaginal canal and was covered by tissues. Her vibrator was extracted from the vagina of Rosario while
abdomen was enlarged, tender and distended, symptoms under anesthesia. Said object was coated with tissues,
of peritonitis. The patient was feverish and incoherent pus and blood. Dr. Rosete gave it to the assisting surgical
nurse for safekeeping and gave instructions to release it of the said object until Mr. Salonga came and asked her
to the authorized person. This object was shown by the for the object.
nurse to Dr. Leo Cruz. Dr. Rosete considered the
operation successful and the patient was alive when he left After Rosario Baluyot died, Sis. Palencia and a companion
her under Dr. Cruz. Dr. Cruz stayed with said patient in went to Gaspar Alcantara to ask him in locating the
the ward for about 30 minutes and thereafter he left. The relatives of Rosario. They were able to trace Rosario's
following day, Rosario got serious and it was Dr. Leo Cruz grandmother, Mrs. Maria Burgos Turla, and informed her
who pronounced her death at 2:00 to 2:15 in the that her granddaughter was already dead and lying in
afternoon of May 20, 1987. state at St. Martin Funeral Parlor. Mrs. Turla went there
with her son, who shouldered all the burial expenses for
Thereafter, a death certificate was prepared under the Rosario.
direction of Dr. Cruz which was indicated therein that the
cause of death was cardio-respiratory arrest, secondary to Subsequently, Sis. Palencia, Fr. Cullens and Mr. Salonga
septicemia caused by the foreign object lodged in the intra came to her residence at Sta. Rita and asked her if she
uteral vaginal canal of Rosario Baluyot. was interested in filing a case against the person who
caused the death of her granddaughter. Of course she
The foreign object was washed by nurse Obedina, then agreed. Hence, she was brought to the Fiscal's (City)
placed it in a transparent small jar and labelled "Rosario Office to file the same.
Baluyot". Jessica Herrera asked the nurse for the foreign
object, and it was given to her under proper After the case was filed against the herein accused, Atty.
receipt. Herrera then showed the same to the persons Edmundo Legaspi with his messenger came to her house
who helped financially Rosario's case, and afterwards she and told her that the accused was willing to settle the case,
gave it to Sister Eva Palencia. Sis. Palencia was in custody but that accused Ritter had only P15,000.00. The old
woman did not accept it because she knows that the because later on Atty. Legaspi became the OIC of
accused is liable to pay damages anyway. After that, she Olongapo City and he could no longer attend to it. Atty.
received a letter from Atty. Legaspi telling her to get a Legaspi, during one of the hearings before the Court even
lawyer for her case. By this time, Mrs. Turla, who wanted apologized to her.
to have the case settled once and for all giving the reason
that she can no longer bear the situation, sent her As to the case, P/Cpl Marino Victoria, as criminal
nephew, Conrado Marcelo to Atty. Legaspi. Her nephew investigator of Station "A", was directed by Col. Daos,
obliged and told her that she will be paid at the office of Station Commander of the Olongapo Police Department to
Atty. Legaspi. On a date not clear in the records, she went make a follow up of the case of Rosario Baluyot. On the
with her nephew Conrado Marcelo, and Roberto Sundiam, other hand, since the suspect who inserted the foreign
an assistant barangay tanod of Sta. Rita, and while they object inside Rosario's vagina was said to be an American,
were there, she saw Ritter arrive at the law office. Ritter the NISRA, Subic Naval Base also conducted its
and Atty. Legaspi talked at the office near the bathroom, investigation headed by criminal investigator Agent
and thereafter Ritter left. After he left, Atty. Legaspi told Conrado Salonga. Coordinating with the local police and
Rosario's grandmother that they are willing to settle for with Sister Eva Palencia, since Rosario was a street child
P20,000.00, but that Ritter left only P15,000.00, so she at Magsaysay Drive, they rounded up about 43 street
received the money with the understanding that there was children and from some of them they learned that Rosario
a balance of P5,000.00 yet. She was made to sign a Baluyot was with Jessie Ramirez with an American at the
statement, and she was asked to change the age of her MGM Hotel when the foreign object was inserted in her
granddaughter Rosario. With the document prepared, she vagina. After finding Jessie Ramirez, they asked him
and the lawyer's messenger went to the Fiscal's office to about Rosario Baluyot. They found out that indeed he was
have it subscribed, and was subscribed before an assistant with Rosario Baluyot sometime before Christmas of 1986
city fiscal. But the balance of P5,000.00 was not paid, with an American, who brought them to the said
hotel. Jessie Ramirez was taken inside the U.S. Naval foreign homo-sexuals were said to be frequenting, but the
Base, Olongapo City and took his statement. Then he was result was negative. Then on September 25, at about
brought to Mr. Edward Lee Bungarner, a cartographer, and 11:00 p.m., while they were standing at the corner of A.
out of the description supplied by Ramirez, a composite Mabini and M.H. del Pilar Street, a male caucasian who
drawing was photocopied and copies thereof were looked like a homo-sexual stopped by admiringly infront
distributed to the local police and to the sentries at the of the two (2) juveniles, Ramirez and Johnson. Jessie
gate of the U.S. Naval Base. Some American servicemen Ramirez then reported to Mr. Salonga that this foreigner
who had resemblance to the composite drawing were had a similarity with the American suspect, so the two
photographed and these were shown to Jessie Ramirez, minors were instructed to follow the foreigner and to strike
but the result was negative. Aside from the physical a conversation. They did, and when they returned, Jessie
description by Ramirez about the appearance of the Ramirez told them that indeed the said foreigner was the
suspect, he also described him as having the mannerisms one who brought him and Rosario Baluyot to the MGM
of a homo-sexual. Hotel. Bobby Salonga told Ramirez that this foreigner had
no beard while the one previously described by Ramirez
After obtaining information that foreign homo-sexuals had a beard. Jessie Ramirez told them that maybe he
frequented Ermita, Manila, and thinking that the so-called have just shaved it off. The said caucasian then entered
American may be European or Australian national, the a bar, and after several minutes he came out, and Jessie
team composed of Agent Salonga, Mr. Heinsell, P/Cpl Ramirez upon his signal with his thumbs up, as a signal to
Marino Victoria and P/Cpl Andres Montaon, Jessie Ramirez confirm that the said foreigner is the suspect, arrested
and Michael Johnson, another juvenile, proceeded to Ritter and brought him to the Manila Western Police
Manila. They first went to the Manila NISRA Office, and District. It could be mentioned at this stage that in this
thereafter checked in a hotel. That was on September 23, operation they were accompanied by two (2) policemen
1987. On the first night, they went to Luneta Park where from the Western Police District. The foreigner was hand
cuffed and was told that he was a suspect for Rape with was Maria Burgos Turla because it was she who had
Homicide. After the arrest, they first went to the pension custody of Rosario Baluyot after her mother Anita Burgos
house of the suspect in Ermita, Manila to get his shoulder died on January 12, 1982, and their father Policarpio
bag which contained his personal belongings, and from Baluyot had left them under her custody. When this case
there they brought him to the Western Police was filed, the father's whereabouts was unknown, and he
Department. At the said police headquarters, they were only appeared when the trial of this case before the Court
allowed a permissive search by the foreigner of his clutch was already in progress. And upon his (Policarpio Baluyot)
bag and his small shoulder bag and confiscated his own admission, he only learned about the death of his
passport, I.D., 3 inhalers, money in the form of dollars and daughter Rosario Baluyot from the newspaper, long after
travelers checks amounting about $1,500.00 and about Rosario was already gone.
P100.00, all duly receipted for. From the passport they
learned that the suspect's name was Heinrich Stefan The defense tried to dislodge the case by claiming that
Ritter, an Austrian national. During the questioning of there could be no crime of Rape with Homicide because
Ritter, Salonga and his team already left the headquarters the suspect was described as an American while Ritter is
and went to their hotel, because at this time Jessie an Austrian. Also advanced by the defense is that, it is a
Ramirez was already shaking with fear after he identified case of mistaken identity. That Rosario Baluyot was at the
the accused. time of the commission of the offense, already more than
13 years old, she having been born on December 26, 1973
The following day, they brought the accused to Olongapo as per baptismal certificate, wherein it appears that
and was detained at the Olongapo City Jail. The case for Rosario Baluyot was baptized on December 25, 1974 and
Rape with Homicide was filed against him at the City Fiscal was born on December 26, 1973 as testified to by Fr.
of Olongapo. At the preliminary investigation, accused Roque Villanueva of St. James Parish Church who issued
was assisted by his own counsel. The private complainant the Baptismal Certificate, having custody and possession
of the book of baptism for the year 1975, but admitted (P60,000.00) Philippine Currency, and TEN THOUSAND
that he had no personal knowledge about the matters or PESOS (P10,000.00) by way of attorney's fees to the
entries entered therein. Likewise, the defense's stand is private prosecutors and to pay the costs." (Rollo, p. 126)
that the accused cannot be liable for Homicide because a
vibrator is not a weapon of death but it is a thing for the The accused now comes to this Court on the following
purpose of giving sexual pleasure, and that the death of assigned errors allegedly committed by the trial court:
Rosario Baluyot was due to the incompetence of Dr.
Rosete, the surgeon and Director of the Olongapo City I
General Hospital, who operated on her." (Rollo, pp. 109-
116) THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS
DISCRETION IN FINDING THAT THE ALLEGED OFFENSE
On March 29, 1989, the trial court rendered its WAS COMMITTED ON OCTOBER 10, 1986 AND THAT IT
decision. The dispositive portion of the decision reads as WAS ACCUSED-APPELLANT WHO COMMITTED IT.
follows:
II
"WHEREFORE, IN VIEW OF ALL THE FOREGOING, the
Court holds, that the prosecution has established the THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS
GUILT of the accused beyond reasonable doubt for the DISCRETION IN FINDING THAT ROSARIO BALUYOT WAS
crime of Rape with Homicide as defined and penalized in LESS THAN TWELVE (12) YEARS OLD WHEN THE ALLEGED
Art. 335 No. 3 of the Revised Penal Code, and hereby OFFENSE WAS COMMITTED AND IN HOLDING THAT
sentences HEINRICH STEFAN RITTER to a penalty of THERE WAS RAPE WITH HOMICIDE.
RECLUSION PERPETUA, to indemnify the heirs of the
deceased in the sum of SIXTY THOUSAND PESOS III
 important in determining whether or not there was
THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS statutory rape. Article 335 of the Revised Penal Code
DISCRETION IN GIVING CREDENCE TO AND NOT defines the third type of rape as having carnal knowledge
REJECTING THE PROSECUTION'S EVIDENCE AND IN NOT of a woman under 12 years of age, in which case force,
UPHOLDING THAT OF THE DEFENSE AND ACQUITTING intimidation, deprivation of reason or unconscious state do
THE ACCUSED.Inasmuch as it is the bounden duty of this not have to be present.
Court to affirm a judgment of conviction only if the guilt of
the accused has been proved beyond reasonable doubt, it The trial court found that Rosario was below 12 years old
behooves us to exert the most painstaking effort to when she was sexually abused by the accused and,
examine the records in the light of the arguments of both therefore, rape was committed inspite of the absence of
parties if only to satisfy judicial conscience that the force or intimidation.
appellant indeed committed the criminal act (See People
v. Villapaña, 161 SCRA 73 [1988]). In resolving the issue, the trial court put great weight on
the testimonies of the victim's grandmother and father
The appellant was convicted by the trial court of the crime who testified that she was born on December 22,
of rape with homicide of a young girl who died after the 1975. These oral declarations were admitted pursuant to
rape because of a foreign object, believed to be a sexual then Rule 130, Section 33 of the Rules of Court where, in
vibrator, left inside her vagina. the absence of a birth certificate, the act or declaration
about pedigree may be received in evidence on any
As stated by the trial court one crucial issue in this case is notable fact in the life of a member of the family. Since
the age of the victim - whether or not Rosario Baluyot was birth is a matter of pedigree within the rule which permits
less than twelve (12) years old at the time the alleged the admission of hearsay evidence, oral declarations are
incident happened on October 10, 1986. The age is therefore admissible as proof of birth (Decision, p. 54)
 accepted this as adequate evidence of the
The grandmother, Maria Burgos Turla, testified that she truth. Moreover, Jessie Ramirez, the principal witness in
remembered Rosario's birth date because her brother died this case declared that he was born on September 5, 1973
in Pampanga and her daughter, Anita (Rosario's mother) and that he was older than Rosario Baluyot. Therefore,
was the only one who failed to attend the funeral because since he was 13 years old in 1986, Rosario must have been
the latter has just given birth allegedly to Rosario (T.S.N. less than 12 years old in 1986. (Decision, p. 55)
p. 8, Jan. 13, 1988).
The trial court concluded that the oral declarations of the
The father likewise testified that as far as he could grandmother and father supported by other independent
remember, Rosario was born on December 22, 1975 evidence such as the clinical record, death certificate and
(T.S.N., p. 4, Jan. 27, 1988) and he was certain that the testimonies of Fe Israel and Jessie Ramirez, rendered
Rosario was more than one (1) year old when she was the baptismal certificate presented by the defense without
baptized (T.S.N., p. 45, Jan. 27, 1988). any probative or evidentiary value. (Decision, p. 55)

The trial court further added that their testimony is The findings of the trial court with respect to Rosario
supported by the clinical record and the death certificate Baluyot's age cannot stand the application of evidentiary
indicating that she was 12 years old when she was rules.
admitted at the Olongapo City General Hospital for
treatment. The age was supplied by Rosario's alleged The trial court relied on Section 33, Rule 130 (now Section
guardian, Gaspar Alcantara to the hospital's clinical record 40 of Rule 130 of the 1989 Revised Rules of Court).
clerk, Lorna Limos. Fe Israel, a social worker who
interviewed Rosario Baluyot also testified that she was told For oral evidence to be admissible under this Rule, the
by Rosario that she was 12 years old. The trial court requisites are:
 both did testify in court. Their declarations were made at
(1) That the declarant must be dead or outside of the the trial which is certainly not before the controversy
Philippines or unable to testify; arose. The other witnesses who testified on Rosario's age
are not members of the victim's family. The testimonies
(2) That pedigree is in issue; of Rosario's relatives must be weighed according to their
own personal knowledge of what happened and not as
(3) That the person whose pedigree is in question must hearsay evidence on matters of family history.
be related to the declarant by birth or marriage;
At this point, we find the evidence regarding Rosario's age
(4) That the declaration must be made before the of doubtful value.
controversy occurred or ante litem motam; and
The trial court justified the admissibility of the
(5) That the relationship between the declarant and the grandmother's testimony pursuant to the ruling laid down
person whose pedigree is in question must as a general in U.S. v. Bergantino, (3 Phil., 118 [1903]) where the
rule be shown by evidence other than such act or Court accepted the testimony of the mother that her
declaration." daughter was 14 years old and 4 months old. The mother
These requirements were not satisfied by the evidence for stated that she knew the age because the child was born
the prosecution nor do the declarations fall within the about the time of the cholera epidemic of 1889. This was
purview of the rule. not hearsay, but came from one who had direct knowledge
of the child's birth.
The victim's grandmother and father whose declarations
regarding Rosario's age were admitted by the trial court It is, however, equally true that human memory on dates
are both alive, in the Philippines and able to testify as they or days is frail and unless the day is an extraordinary or
unusual one for the witness, there is no reasonable
assurance of its correctness. (People v. Dasig, 93 Phil. All the evidence presented by the prosecution showing
618, 632 [1953]) that Rosario Baluyot was less than 12 years old at the time
of the alleged incident are not adequate to establish the
With respect to the grandmother's testimony, the date of exact date of birth, much less offset a documentary record
the brother's death or funeral was never established, showing a different date.
which indicates that the day was rather insignificant to be
remembered. The father's declaration is likewise not The defense presented Rosario Baluyot's baptismal
entirely reliable. His testimony in court does not at all certificate which the trial court rejected as being hearsay
show that he had direct knowledge of his daughter's and of no value. As against the oral declarations made by
birth. He was certain though that she was more then one interested witnesses establishing Rosario's age to be less
(1) year old at the time she was baptized. than 12 years old, the evidence on record is more
convincing and worthy of belief. (See Filinvest Land, Inc
The other witnesses are not at all competent to testify on v. Court of Appeals, 183 SCRA 664, 673 [1990]).
the victim's age, nor was there any basis shown to
establish their competence for the purpose. The clinical By virtue of a subpoena duces tecum and ad testi
records were based on Gaspar Alcantara's incompetent ficandum, issued by the lower court to the St. James
information given when he brought the victim to the Parish Church, Subic, Zambales, Fr. Roque Villanueva a
hospital. Alcantara came to know her only about a year Roman Catholic priest testified and stated that he is the
before her death. He had absolutely no knowledge about head of said parish. He brought with him Baptismal
the circumstances of Rosario's birth. The death certificate Register No. 9 entitled "Liber Baptisnorum", a latin term
relied upon by the trial court was merely based on the for baptismal book or record. On page 151, No. 3 of the
clinical records. It is even less reliable as a record of birth. said Registry Book, there appears the name of Rosario
Baluyot who was baptized on December 25, 1974, and only of the baptism administered, in conformity with the
born on December 26, 1973. Parents are Policarpio rites of the Catholic Church by the priest who baptized the
Baluyot and Anita Burgos, residents of Subic, child, but it does not prove the veracity of the declarations
Zambales. Edita R. Milan appears as the only sponsor with and statements contained in the certificate that concern
Olongapo City as her address. the relationship of the person baptized. Such declarations
and statements, in order that their truth may be admitted,
In the case of Macadangdang v. Court of Appeals (100 must indispensably be shown by proof recognized by law."
SCRA 73 [1980]), we held that: (At pp. 84-85)In the same light, the entries made in the
Registry Book may be considered as entries made in the
xxx xxx course of business under Section 43 of Rule 130, which is
xxx an exception to the hearsay rule. The baptisms
administered by the church are one of its transactions in
“In our jurisprudence, this Court has been more definite in the exercise of ecclesiastical duties and recorded in a book
its pronouncements on the value of baptismal of the church during the course of its business. (U. S. v.
certificates. It thus ruled that while baptismal and de Vera, 28 Phil. 105 [1914]) Hence, the certificate
marriage certificates may be considered public (Exhibit "22") presented by the defense that Rosario
documents, they are evidence only to prove the Baluyot was baptized on December 25, 1974 may be
administration of the sacraments on the dates therein admitted in evidence as proof of baptism. Policarpio
specified - but not the veracity of the status or declarations Baluyot, the victim's father testified that he had in his
made therein with respect to his kinsfolk and/or citizenship possession a baptismal certificate different from the one
(Paa v. Chan, L-25945, Oct. 31, 1967). Again, in the case presented in court. However, no other baptismal record
of Fortus v. Novero (L-22378, 23 SCRA 1331 [1968]), this was ever presented to prove a date different from that
Court held that a baptismal certificate is conclusive proof brought by the official custodian. Since the baptismal
certificate states that Rosario was baptized on December corroborate the date on a more reliable document as to
25, 1974, it is therefore highly improbable that Rosario Rosario's birth which could serve as sufficient proof that
could have been born on December 22, 1975. She could she was born on December 26, 1973. Therefore, she was
not have been baptized before she was born. Exhibit "22" more than 12 years old at the time of the alleged incident
may be proof only of baptism but it puts a lie to the on October 10, 1986.
declaration that Rosario was born in 1975. With the
father's assertion that Rosario was more than one (1) year Moreover, it is not incumbent upon the defense to prove
old when she was baptized, we are then more inclined to Rosario's age. The burden of proof lies on the prosecution
agree that Rosario was born in 1973 as stated in the to prove that Rosario was less than 12 years old at the
Baptismal Registry. time of the alleged incident in a charge of statutory
rape. The prosecution failed in this respect.
In the case of People v. Rebancos (172 SCRA 425 [1989]),
the Court stated: Since Rosario was not established to have been under 12
years of age at the time of the alleged sexual violation, it
xxx xxx was necessary to prove that the usual elements of rape
xxx were present; i.e. that there was force or intimidation or
that she was deprived of reason or otherwise unconscious
"x x x Although no birth certificate was presented because in accordance with Article 335 of the Revised Penal Code.
her birth had allegedly not been registered, her baptismal
certificate, coupled by her mother's testimony, was We agree with the defense that there was no proof of such
sufficient to establish that Mary Rose was below twelve facts. On the contrary, the evidence shows that Rosario
years old when she was violated by Rebancos." (At. p. submitted herself to the sexual advances of the
426)Unfortunately, in the instant case, nobody could appellant. In fact, she appears to have consented to the
act as she was paid P300.00 the next morning while her The trial court convicted the accused based on
companion, Jessie Ramirez was paid P200.00 (T.S.N. p. circumstantial evidence. Unfortunately, the
50, January 6, 1988). The environmental circumstances circumstances are capable of varying interpretations and
coupled with the testimonies and evidence presented in are not enough to justify conviction.
court clearly give the impression that Rosario Baluyot, a
poor street child, was a prostitute inspite of her tender Jessie Ramirez, the principal witness did not actually see
age. Circumstances in life may have forced her to submit the object inserted in Rosario's vagina. Neither could he
to sex at such a young age but the circumstances do not identify the object (Exhibit "C-2") taken from Rosario as
come under the purview of force or intimidation needed to the same object which the appellant was holding at that
convict for rape. time of the alleged incident.

In view of these clear facts which the prosecution failed to In his sworn statement given to the police investigator on
refute, no rape was committed. But was Ritter guilty of September 4, 1987, he answered that:
homicide?
xxx xxx

The trial court justified its ruling by saying that the death
of the victim was a consequence of"T. Habang
the kayoof
insertion aythe
nasa loob ng kuwarto ng otel, mayroon ka bang napansin na inilabas ng kano sa
dalahan kung mayroon man?
foreign object into the victim's vagina by the appellant.

Ang Amerikano ay may dala-dalang shoulder bag na kulay itim, at napansin ko na may inilabas s
S. bag na
We now ask "Was the appellant responsible forparang vicks inhaler, na kanyang inamoy-amoy habang nasa otel kami at pagkatapos n
the sexual
niya sa lamiseta.
vibrator left inside Rosario's vagina which led to her
death?"
T. Ilarawan mo nga sa akin ang bagay na nakita mong inilabas ng Amerikano?
 only one shown to him by the prosecution (T.S.N. pp. 109-
habang tatlong pulgada at ang takip nito ay may habang dalawang pulgada. Iyong
110, takip ay 6,
January bilog na Jessie Ramirez was not all certain
1988).
ay tabang mga kalahating pulgada. Hindi ko napansin ang hugis ng dulo ng bagay na may takip dahil
ng kamay at ilong ng Amerikano. about the sexual vibrator because he did not actually see
it in the possession of the appellant.
ko sa iyo ang isang larawan. Tignan mong mabuti ang larawang ito at sabihin mo nga sa akin kung
mo ang mga bagay na nasa larawang ito, na may kinalaman sa nakita mong kinuha ng Amerikano sa
g? What he merely remembers is the revelation made by
Rosario the next morning that the foreigner inserted
o na ang kulay asul na bagay sa larawan ay katulad na katulad noong takip ngsomething
bagay na inilabas ng vagina. The trial court admitted
inside her
sa kanyang bag. Kaya lang ay bakit naging kulay asul gayong ng makita ko ito ay kulay puti? (Exhibit
erlining Supplied) such statement as part of the res gestae. In a strained
effort to accept such statement as part of res gestae, the

Presumably, what Jessie Ramirez saw was merely the trial court focused the test of admissibility on the lapse of

Vicks inhaler which the appellant does not deny having time between the event and the utterance. For the

possessed at that time. He was certain that the object average 13 years old, the insertion of a mechanical device

was white. (T.S.N. p. 91, January 6, 1988) or anything for that matter into the vagina of a young girl
is undoubtedly startling. For Rosario and Jessie, however,

Later, Ramirez retracted and corrected himself. He said there must be more evidence to show that the statement,

that it was grayish in color with color blue (Medyo kulay given after a night's sleep had intervened, was given

abo na may kulay na parang blue). (T.S.N. p. 92, January instinctively because the event was so startling. Res

6, 1988) The inconsistency of the witness testimony casts gestae does not apply. (Section 42, Rule 130, Rules of

doubt as to the veracity of the statements made especially Court)

when he answered on additional cross-examination that

the reason why he concluded that Exhibit "C-2" was the Even if it were established that the appellant did insert

same object being held by Ritter was because it was the something inside Rosario's vagina, the evidence is still not
 adequate to impute the death of Rosario to the appellant's to the hotel. (T.S.N. p. 73, January 6, 1988). Rosario was
alleged act. said to be groaning in pain so we can just imagine the
distress she was undergoing at this point in time. If the
Jessie Ramirez testified that Rosario was able to remove device inserted by the appellant caused the pain, it is
the object inserted in her vagina. We quote: highly inconceivable how she was able to endure the pain
and discomfort until May, 1987, seven (7) months after
so stated on direct examination that later on Rosario even categorically admitted to you that she was
the alleged incident. Evidence must not only proceed from
e to remove the object allegedly inserted inside her vagina, is that correct?
the mouth of a credible witness but it must be credible in
itself such as the common experience and observation of
mankind can approve as probable under the
circumstances. (People v. Patog, 144 SCRA 429 [1986]).
xxx xxx

At this juncture, we find Dr. Pedro Solis' testimony rather

: significant. Dr. Pedro Solis, a witness for the defense is
considered an expert witness. (A Doctor of Medicine and
dly tell to this Honorable Court the exact words used by Rosario Baluyot later aongraduate
when youofmet
the her
State University in 1940, a degree of
sked her and when she told you that she was already able to remove that object from her vagina?
Bachelor of Laws and member of the Bar 1949, and a

natanggal na," she told me that. I asked her, "Was it already removed?" And graduate of the
she answered, Institute
'Yes, it of Criminology University. He
ed.' But the same night, she again complained of pain of her stomach. She sentwas
oneawarded
of her friends
Post toGraduate Diploma in Criminology in
And as a matter of fact, Tomboy was uttering defamatory words against me as she was groaning in
, Jan. 6, 1988, pp. 72-73) 1963, and also a graduate of United Nations Asia and Far
East Asia Institute on the Prevention of Crimes in Tokyo

This encounter happened on the night of the day following Japan 1965. He was appointed Medico Legal Officer of the

the day after both children were invited by the foreigner National Bureau of Investigation in 1940 until 1944. He
 In severe cases, the symptoms manifestation might not only be localized but may be felt all ove
became Chief Medico Legal Officer in 1970 and became
call it systemic reaction. Now, considering the fact that this foreign body as shown to me is already
the Deputy Director of the NBI up to this1984.
shows He
exposure
is at of its different parts for the body to react. If there is mechanism to cause th
to vibrate, there must be some sort of power from within and that power must be a dry cell
present a Professorial Lecturer on Legal Medicine of
composition at the
the battery are, manganese dioxide ammonium, salts, water and any substance
current flow.
UP, FEU, UE, and Fatima College of Medicine; All of these substances are irritants including areas of the container and as such, the p
a Medico
of the body is to cause irritation on the tissues, thereby inflammatory changes develop and in all li
Legal Consultant of the PGH Medical fromCenter, Makati
those inflammatory changes would be a supervening infection in a way that the wh ole gene
Medical Center, UERM Medical Center, the woman will suffer from diseased process causing her the systemic reaction like fever, swellin
MCU Medical
and other systemic symptoms. x x x. (TSN., pp. 13-15, October 19, 1988)
Center. He has been with the NBI for 43 years. He has
attended no less than 13 conferences abroad. He is the
xxx xxx
author of the textbooks entitled "Legal Medicine" and
"Medical Jurisprudence".) With his impressive legal and
Now, given this object, how long would it take, Doctor before any reaction such as an infection wo
Q too authoritative to
medical background, his testimony is many days after the insertion of this object in the vagina of a 12 year old girl?
ignore. We quote the pertinent portions of his testimony:
In the example given to me, considering that one of the ends is exposed, in a way that vaginal secr
A chance
s, would you kindly go over this object marked as Exh. 'C-2'towhich
get in, well, was
object liberation of this
described as airritant
part ofchemicals would be enhanced and therefore in ash
time, there being this vaginal reaction.
rator battery operated. Now, given this kind of object, would you kindly tell us what would be the
ect upon a 12 years old girl when it is inserted into her vagina?

Q How many days or weeks would you say would that follow after the insertion?
brator must be considered a foreign body placed into a human being and as such be considered a
ct. As a foreign object, the tendency of the body may be: No. 1 - expel the foreign body - No. 2. -
y of the body is to react to that foreign body. One Asof Ithe reactions
said, with mythat maybe manifested
experience byinsertion
at the NBI, the of any foreign body in the vaginal canal usu
ein such foreign body is concerned is to cover the A
foreign body with human tissue, in
within a period of two (2) weeks xxx.a way to avoid
jury to the body.

xxx
ond reaction is irritation thereby producing certain manifest symptoms and changes in the area wherexxx
body is located.

x x x [T]he subject in this case was allegedly raped, and a sexual vibrator was inserted in her vag
Q.
10, 1986 and she was operated on, on May 19, 1987 the following year, so it took more than 7
racted, would you say that it will take that long before any adverse infection could set-in inside the
A more generous time interval may be allowed in non-
criminal cases. But where an accused is facing a penalty
of reclusion perpetua, the evidence against him cannot be
d inflamatory changes will develop in a shorter time. (TSN., Oct. 19, 1988, p. 18)
based on probabilities which are less likely than those
probabilities which favor him.
xxx xxx

It should be clarified that the time frame depends upon

aid shorter, how long would that be, Doctor? the kind of foreign body lodged inside the body. An
examination of the object gave the following results:
my personal experience, hair pins, cottonballs and even this lipsticks of women usually, there are
wo (2) weeks time that the patient suffer some abnormal symptoms.
Color:
(1)Size : (a) Circumference - 3.031 inches (b) Length - approximately 2
Composition: Showed the general characteristics of a styrene-butadiene plastic.
ering that this is a bigger object to the object that you mentioned, this object has a shorter time?

The specimen can be electrically operated by means of a battery as per certification dated 01 Jun
(2)by Mr. Rodolfo D. Mercurio, Shipboard Electrical Systems Mechanics, Foreman II, SRF Shop
ter time." (TSN., Oct. 19, 1988, p. 20) attached certification).

The trial court, however, ruled that (3)No comparative

"there examination was made on specimen #1 and vibrator depicted in the catalog bec
is no hard and
physical dimensions and/or mechanical characteristics were shown in the catalog." (Exhibit "LL")
fast rule as to the time frame wherein infection sets in
upon insertion of a foreign body in the vagina canal. For
The vibrator end was further subjected to a macro-
Dr. Solis, the time frame is not more than 10 months, and
photograhic examination on the open end portion which
this case is still within the said time frame."
revealed the following:
"Result of Examination
Dr. Barcinal, another witness for the defense also testified
Macro-photographic examination on the open end portion that he examined Rosario Baluyot on May 17, 1986 as a
of specimen #1 shows the following inscription: referral patient from the Department of Surgery to give an
OB-GYN clearance to the patient prior to
MABUCHI MOTOR JAPAN RE 14 PAT" (Exhibit "MM") operation. (T.S.N. p. 6, September 28, 1988)

From the above results, the subject Q And how

object many times
is certainly not did you examine this patient Rosario Baluyot on that day?
considered as inert and based on Dr. Solis' testimony, it is
more likely that infection should set in her
A I examined much
twice on that day?
earlier. Considering also that the object was inserted
inside the vagina which is part of the generative organ of
Q The first time that you examined her, what is the result of your findings, if any?
a woman, an organ which is lined with a very thin layer of
membrane with plenty of blood supply, this part of the
My first examination, I examined the patient inside the delivery room. The patient was brought
body is more susceptible to infection. room(T.S.N. p. 34, then from the wheel chair, the patient was ambigatory (sic). She was able to
wheel-chaired
door to the examining table. On examination, the patient is conscious, she was fairly nourished, fa
October 19, A 1988)
she had fever, she was uncooperative at that time and examination deals more on the abdome
slightly distended abdomen with muscle guarding with tenderness all over, with maximum tende
hypogastric area. (T.S.N. p. 5, September 28, 1988)
The truth of Dr. Solis' testimony is more probable under
the circumstances of the case. We see no reason why his
xxx xxx xx
opinions qualified by training and experience should not
be controlling and binding upon the Court in the
xxx doubt. (People
determination of guilt beyond reasonable xxx xx

v. Tolentino, 166 SCRA 469 [1988]).

your second examination to the patient, what was Ayour
Shefindings,
said in her
if any?
own words that "GINAMIT AKO NG NEGRO AT SIYA A NG NAGLAGAY NITO."

d examination, I repeated the internal examination wherein

Q Did she alsoI placed
tell youmy index
when, thisfinger
Negroand
whomiddle
used her and who inserted and placed the foreign object
the vagina of the patient and was able to palpate a hard object. After which, I made a speculum
wherein I was able to visualize the inner portion of the vaginal canal, there I saw purulent foul
od tints, discharge in the vaginal canal and a foreign body invaded on the posteri or part of the vaginal
A Yes, Sir I asked her and she said he used me three (3) months ago from the time I examined her

xxx Q Now, you said that you referredxxx

the patient to the ward, what happened next with your patient?

ack to Dr. Fernandez about my findings and he asked me to try to remove the said foreign object by
A To the
rceps which I tried to do so also but I failed to extract my same.
knowledge, the patient is already scheduled on operation on that date.

that you were examining the patient Rosario Baluyot both in May
Q Meaning, the first and second instance, Rosario
17, 1987?
conscious and were you able to talk to her when you were examining her?

Yes, Sir I was presuming that the patient would undergo surgery after that? (TSN, Sept. 28, 1
A
Emphasis supplied)

ask her why there is a foreign object lodge inside her vagina? The trial court debunked Dr. Barcinal's testimony
considering Rosario's condition at that time. It ruled that

ked her. it is inconceivable that she would be striking a normal

conversation with the doctors and would be sitting on the
examination table since Gaspar Alcantara stated that
d she tell you, if any?
when he brought Rosario Baluyot to the hospital, she was
unconscious and writhing in pain.
 floor and when she asked why she was seated there, she
It was not improbable for Rosario Baluyot to still be was told that it was too hot in the bed. She saw Rosario
conscious and ambulant at that time because there were Baluyot for about 2 or 3 days successively, T.S.N. pp. 10-
several instances testified to by different witnesses that 13, September 7, 1988)
she was still able to talk prior to her operation:
(3) Gaspar Alcantara, the person who brought Rosario to
(1) Fe Israel, a witness for the prosecution and a member the hospital actually testified that she was conscious
of the Olongapo Catholic Charismatic Renewal Movement (T.S.N. p. 36, September 14, 1988) but writhing in
testified that as a member of this group she visits indigent pain. He took pity on her so he brought her to the hospital
children in the hospital every Saturday and after office (T.S.N. p. 12, September 14, 1988)
hours on working days.
From the above testimonies, it is clear that Rosario was
On the Saturday prior to Rosario's death which was May still conscious and could still answer questions asked of
17, she was still able to talk to Rosario Baluyot. In fact, her although she was complaining of stomach
one of her groupmates helped Rosario go to the comfort pains. Unfortunately, the medical attention given to her
room to urinate. (T.S.N., pp. 16-19, May 25, 1988) failed to halt the aggravation of her condition. The
operation on May 19 was too late.
(2) Angelita Amulong, a witness for the defense is another
para social worker who worked at Pope John 23rd Rosario died because of septicemia, which in layman's
Community Center under Sister Eva Palencia. In one of language is blood poisoning, and peritonitis, which is
her hospital visits, she encountered Rosario Baluyot in the massive infection, in the abdominal cavity caused by the
month of May, 1987. She actually saw a child who foreign object or the cut sexual vibrator lodged in the
happened to be Rosario Baluyot seated on the cement vagina of the victim. This led to the infection from the
uterus to the fallopian tubes and into the peritoneum and xxx xxx xxx
the abdominal cavity.
"The basic principle in every criminal prosecution is that
The trial court convicted the accused citing the rationale accusation is not synonymous with guilt. The accused is
of Article 4 of the RPC. presumed innocent until the contrary is proved by the
prosecution. If the prosecution fails, it fails utterly, even
“He who is the cause of the cause is the cause of the evil if the defense is weak or, indeed, even if there is no
caused.” defense at all. The defendant faces the full panoply of
state authority with all "The People of the Philippines"
But before the conviction is affirmed, we must first follow arrayed against him. In a manner of speaking, he goes to
the rule as stated in the case of Urbano v. Intermediate bat with all the bases loaded. The odds are heavily against
Appellate Court (157 SCRA 1 [1988]) to wit: him. It is important, therefore, to equalize the positions
of the prosecution and the defense by presuming the
"The rule is that the death of the victim must be the direct, innocence of the accused until the state is able to refute
natural and logical consequence of the wounds inflicted the presumption by proof of guilt beyond reasonable
upon him by the accused. And since we are dealing with doubt." (At p. 592)The evidence for the accused may be
a criminal conviction, the proof that the accused caused numerically less as against the number of witnesses and
the victim's death must convince a rational mind beyond preponderance of evidence presented by the prosecution
reasonable doubt." (Underlining supplied) but there is no direct and convincing proof that the
accused was responsible for the vibrator left inside the
In People v. Tempongko, Jr., (144 SCRA 583, 592 victim's vagina which caused her death seven (7) months
[1986]), we explained that: after its insertion. What the prosecution managed to
establish were mere circumstances which were not
sufficient to overcome the constitutional presumption of case the circumstantial evidence presented by the
innocence. While circumstantial evidence may suffice to prosecution does not conclusively point to the liability of
support a conviction it is imperative, though, that the the appellant for the crime charged. (People v.
following requisites should concur: Tolentino, supra).

(a) There is more than one circumstance; We are aware of the wide publicity given to the plight of
Rosario Baluyot and how her death exemplified starkly the
(b) The facts from which the inferences are derived are daily terrors that most street children encounter as they
proven; and sell their bodies in order to survive. At an age when
innocence and youthful joys should preponderate in their
(c) The combination of all the circumstances is such as lives, they experience life in its most heartless and
to produce a conviction beyond reasonable doubt. (Rule inhuman form. Instead of nothing more than gentle
133, Sec. 4 Revised Rules of Court) disappointments occupying their young minds, they daily
cope with tragedies that even adults should never be made
For the well-entrenched rule in evidence is that "before to carry.
conviction can be had upon circumstantial evidence, the
circumstances proved should constitute an unbroken chain It is with distressing reluctance that we have to seemingly
which leads to one fair and reasonable conclusion pointing set back the efforts of Government to dramatize the death
to the defendant, to the exclusion of all others, as the of Rosario Baluyot as a means of galvanizing the nation to
author of the crime (People v. Subano, 73 Phil. 692 care for its street children. It would have meant a lot to
[1942]; Underlining supplied). It must fairly exclude social workers and prosecutors alike if one pedophile-killer
every reasonable hypothesis of innocence (Dorado v. could be brought to justice so that his example would
Court of Appeals, 153 SCRA 420, 433 [1987]). In this arouse public concern, sufficient for the formulation and
implementation of meaningful remedies. However, we for rape. There is no such proof. In fact, the evidence
cannot convict on anything less than proof beyond shows a willingness to submit to the sexual act for
reasonable doubt. The protections of the Bill of Rights and monetary considerations.
our criminal justice system are as much, if not more so,
for the perverts and outcasts of society as they are for 3. The only witness to the fact of Ritter's placing a
normal, decent, and law-abiding people. vibrator inside the vagina of Rosario was Jessie
Ramirez. This witness did not see Ritter insert the
The requirement of proof which produces in an vibrator. The morning after the insertion, he was only told
unprejudiced mind moral certainty or conviction that the by Rosario about it. Two days later, he allegedly met
accused did commit the offense has not been satisfied. Rosario who informed him that she was able to remove
the object. And yet, Ramirez testified that on the night of
By way of emphasis, we reiterate some of the factors that second encounter, he saw Rosario groaning because
arousing reasonable doubt: of pain in her stomach. She was even hurling
invectives. Ramirez' testimony is not only hearsay, it is
1. The evidence on Rosario Baluyot's baptism creates also contradictory.
reasonable doubt about her being less than 12 years old
when the carnal knowledge took place. If the evidence for 4. It was improbable, according to expert medical
the prosecution is to be believed, she was not yet born on testimony, for a foreign object with active properties to
the date she was baptized. cause pain, discomfort, and serious infection only after
seven months inside a young girl's vaginal
2. Since the proof of Rosario's being under 12 years of canal. Infection would have set in much earlier. Jessie
age is not satisfactory, the prosecution has to prove force, Ramirez recalled that the incident happened in December
intimidation, or deprivation of reason in order to convict of 1986. (TSN., January 6, 1988, pp. 15-17) The
evidence, however, shows that the appellant was not here where a vibrator or vibrators were inserted into her vagina
in the Philippines that December. As per the Commission between October, 1986 and May, 1987.
on Immigration Arrival and Departure Report, Heinrich
Ritter arrived in the Philippines on October 7, 1986 and Moreover, the long delay of seven (7) months after the
left on October 12, 1986. He never returned until incident in reporting the alleged crime renders the
September 23, 1987 (Exhibits "DD" and "EE"). The evidence for the prosecution insufficient to establish
incident could have happened only in October, but then it appellant's guilty connection with the requisite moral
would have been highly improbable for the sexual vibrator certainty. (See People v. Mula Cruz, 129 SCRA 156
to stay inside the vagina for seven (7) months with the [1984]).
kind of serious complications it creates.
The established facts do not entirely rule out the possibility
5. The gynecologist who attended to Rosario during her that the appellant could have inserted a foreign object
hospital confinement testified that she told him "Ginamit inside Rosario's vagina. This object may have caused her
ako ng Negro at siya ang naglagay nito." The accused is death. It is possible that the appellant could be the guilty
not a black. person. However, the Court cannot base an affirmance of
conviction upon mere possibilities. Suspicions and
Noteworthy is the fact that nothing was mentioned about possibilities are not evidence and therefore should not be
Rosario's activities after the hotel incident. Considering taken against the accused. (People v. Tolentino, supra)
Dr. Barcinal’s testimony indicating that she was "used" by
a "Negro" three (3) months prior to admission in the Well-established is the rule that every circumstance
hospital and Rosario's unfortunate profession, there is favorable to the accused should be duly taken into
always the possibility that she could have allowed herself account. This rule applies even to hardened criminals or
to be violated by this perverse kind of sexual behavior those whose bizarre behaviour violates the mores of
civilized society. The evidence against the accused must In the instant case, since there are circumstances which
survive the test of reason. The strongest suspicion must prevent our being morally certain of the guilt of the
not be allowed to sway judgment. (See Sacay v. appellant, he is, therefore, entitled to an acquittal.
Sandiganbayan, 142 SCRA 593 [1986]). As stated in the
case of People v. Ng, (142 SCRA 615 [1986]): This notwithstanding, the Court can not ignore the acts of
the appellant on the children, Jessie Ramirez and Rosario
"x x x [F]rom the earliest years of this Court, it has Baluyot in October, 1986 at the MGM Hotel. Inspite of his
emphasized the rule that reasonable doubt in criminal flat denials, we are convinced that he comes to this
cases must be resolved in favor of the accused. The country not to look at historical sights, enrich his intellect
requirement of proof beyond reasonable doubt calls for or indulge in legitimate pleasures but in order to satisfy
moral certainty of guilt. It has been defined as meaning the urgings of a sick mind.
such proof ‘to the satisfaction of the court, keeping in mind
the presumption of innocence, as precludes every With the positive identification and testimony by Jessie
reasonable hypothesis except that which it is given to Ramirez that it was the appellant who picked him and
support. It is not sufficient for the proof to establish a Rosario from among the children and invited them to the
probability, even though strong, that the fact charged is hotel; and that in the hotel he was shown pictures of
more likely to be true than the contrary. It must establish young boys like him and the two masturbated each other,
the truth of the fact to a reasonable and moral certainty - such actuations clearly show that the appellant is a
a certainty that convinces and satisfies the reason and the pedophile. When apprehended in Ermita, he was sizing up
conscience of those who are to act upon it.” (Moreno, young children. Dr. Solis defined pedophilia in his book
Philippine Law Dictionary, 1972 Edition, p. 379, citing U.S. entitled Legal Medicine, 1987 edition, as follows:
v. Reyes, 3 Phil. 3). x x x"
"Pedophilia - A form of sexual perversion wherein a person assistance and special protection from all forms of neglect,
has the compulsive desire to have sexual intercourse with abuse, cruelty, exploitation and other conditions
a child of either sex. Children of various ages participate prejudicial to their development. (Art. XV, Section 3 [2])
in sexual activities, like fellatio, cunnilingus, fondling with x x x (Harvey v. Santiago, supra). The appellant has
sex organs, or anal sexual intercourse. Usually committed abused Filipino children, enticing them with money. The
by a homosexual between a man and a boy the latter appellant should be expelled from the country.
being a passive partner."
Furthermore, it does not necessarily follow that the
Ritter was prosecuted for rape with homicide and not appellant is also free from civil liability which is impliedly
pedophilia, assuming this is a crime by itself. Pedophilia instituted with the criminal action. (Rule III, Section
is clearly a behavior offensive to public morals and 1) The well-settled doctrine is that a person while not
violative of the declared policy of the state to promote and criminally liable, may still be civilly liable. We reiterate
protect the physical, moral, spiritual and social well-being what has been stated in Urbano v. IAC, supra.
of our youth. (Article II, Section 13, 1987 Constitution)
(Harvey v. Defensor Santiago, 162 SCRA 840, 848 "xxx While the guilt of the accused in a criminal
[1989]). Pedophiles, especially thrill seeking aliens have prosecution must be established beyond reasonable
no place in our country. doubt, only a preponderance of evidence is required in a
civil action for damages. (Article 29, Civil Code). The
In this case, there is reasonable ground to believe that the judgment of acquittal extinguishes the civil liability of the
appellant committed acts injurious not only to Rosario accused only when it includes a declaration that the facts
Baluyot but also to the public good and domestic from which the civil liability might arise did not
tranquility of the people. The state has expressly exist. (Padilla v. Court of Appeals, 129 SCRA 559).
committed itself to defend the right of children to
The reason for the provisions of Article 29 of the Civil social order and the other, private rights. One is for the
Code, which provides that the acquittal of the accused on punishment or correction of the offender while the other is
the ground that his guilt has not been proved beyond for the reparation of damages suffered by the aggrieved
reasonable doubt does not necessarily exempt him from party. The two responsibilities are so different from each
civil liability for the same act or omission, has been other that article 1813 of the present (Spanish) Civil Code
explained by the Code Commission as follows: reads thus: 'There may be a compromise upon the civil
action arising from a crime; but the public action for the
"‘The old rule that the acquittal of the accused in a criminal imposition of the legal penalty shall not thereby be
case also releases him from civil liability is one of the most extinguished.' It is just and proper that, for the purposes
serious flaws in the Philippine legal system. It has given of the imprisonment of or fine upon the accused, the
rise to numberless instances of miscarriage of justice, offense should be proved beyond reasonable doubt. But
where the acquittal was due to a reasonable doubt in the for the purpose of indemnifying the complaining party,
mind of the court as to the guilt of the accused. The why should the offense also be proved beyond reasonable
reasoning followed is that inasmuch as the civil doubt? Is not the invasion or violation of every private
responsibility is derived from the criminal offense, when right to be proved only by a preponderance of
the latter is not proved, civil liability cannot be demanded. evidence? Is the right of the aggrieved person any less
private because the wrongful act is also punishable by the
This is one of those causes where confused thinking leads criminal law?
to unfortunate and deplorable consequences. Such
reasoning fails to draw a clear line of demarcation between For these reasons, the Commission recommends the
criminal liability and civil responsibility, and to determine adoption of the reform under discussion. It will correct a
the logical result of the distinction. The two liabilities are serious defect in our law. It will close up an inexhaustible
separate and distinct from each other. One affects the
source of injustice - a cause for disillusionment on the part The appellant certainly committed acts contrary to morals,
of the innumerable persons injured or wronged.’" good customs, public order or public policy (see Article 21
Civil Code). As earlier mentioned, the appellant has
Rosario Baluyot is a street child who ran away from her abused Filipino children, enticing them with money. We
grandmother's house. Circumstances forced her to can not overstress the responsibility for proper behavior
succumb and enter this unfortunate of all adults in the Philippines, including the appellant
profession. Nonetheless, she has left behind heirs who towards young children. The sexual exploitation
have certainly suffered mental anguish, anxiety and moral committed by the appellant should not and can not be
shock by her sudden and incredulous death as reflected in condoned. Thus, considering the circumstances of the
the records of the case. Though we are acquitting the case, we are awarding damages to the heirs of Rosario
appellant for the crime of rape with homicide, we Baluyot in the amount of P30,000.00.
emphasize that we are not ruling that he is innocent or
blameless. It is only the constitutional presumption of And finally, the Court deplores the lack of criminal laws
innocence and the failure of the prosecution to build an which will adequately protect street children from
airtight case for conviction which saved him, not that the exploitation by pedophiles, pimps, and, perhaps, their own
facts of unlawful conduct do not exist. As earlier stated, parents or guardians who profit from the sale of young
there is the likelihood that he did insert the vibrator whose bodies. The provisions on statutory rape and other related
end was left inside Rosario's vaginal canal and that the offenses were never intended for the relatively recent
vibrator may have caused her death. True, we cannot influx of pedophiles taking advantage of rampant poverty
convict on probabilities or possibilities but civil liability among the forgotten segments of our society. Newspaper
does not require proof beyond reasonable doubt. The and magazine articles, media exposes, college
Court can order the payment of indemnity on the facts dissertations, and other studies deal at length with this
found in the records of this case. serious social problem but pedophiles like the appellant
will continue to enter the Philippines and foreign
publications catering to them will continue to advertise the Fernan, C.J., (Chairman), Feliciano, Bidin, and Davide, Jr.,
availability of Filipino street children unless the JJ., concur.
Government acts and acts soon. We have to acquit the
appellant because the Bill of Rights commands us to do
so. We, however, express the Court's concern about the JOYCE V. ARDIENTE, Petitioner,
- versus-
problem of street children and the evils committed against
SPOUSES JAVIER and MA. THERESA PASTORFIDE,
them. Something must be done about it.
CAGAYAN DE ORO \VATER DISTRICT and GASPAR
GONZALEZ, * JR., Respondents
WHEREFORE, the appealed judgment is REVERSED and
G.R. No. 161921 | 2013-07-17
SET ASIDE. Appellant HEINRICH STEFAN RITTER is
THIRD DIVISION
ACQUITTED on grounds of reasonable doubt. The DECISION
appellant is ordered to pay the amount of P30,000.00 by
PERALTA, J.:
way of moral and exemplary damages to the heirs of
Before the Court is a petition for review on certiorari under
Rosario Baluyot. The Commissioner of Immigration and Rule 45 of the Rules of Court seeking to reverse and set
Deportation is hereby directed to institute proper aside the Decision 1 and Resolution 2 of the Court of
Appeals (CA), dated August 28, 2003 and December 17,
deportation proceedings against the appellant and to 2003, respectively, in CA-G.R. CV No. 73000. The CA
immediately expel him thereafter with prejudice to re- Decision affirmed with modification the August 15, 2001
Decision 3 of the Regional Trial Court (RTC) of Cagayan de
entry into the country. Oro City, Branch 24, while the CA Resolution denied
petitioner's Motion for Reconsideration.

SO ORDERED. The facts, as summarized by the CA, are as follows:

[Herein petitioner] Joyce V. Ardiente and her husband Dr.

Roberto S. Ardiente are owners of a housing unit at Emily
Homes, Balulang, Cagayan de Oro City with a lot area of On March 15, 1999, Ma. Theresa paid the delinquent bills
one hundred fifty-three (153) square meters and covered (T.S.N., October 31, 2000, p. 12). On the same date,
by Transfer Certificate of Title No. 69905. through her lawyer, Ma. Theresa wrote a letter to the
COWD to explain who authorized the cutting of the water
On June 2, 1994, Joyce Ardiente entered into a line (Records, p. 160).
Memorandum of Agreement (Exh. “B”, pp. 470-473,
Records) selling, transferring and conveying in favor of On March 18, 1999, COWD, through the general manager,
[respondent] Ma. Theresa Pastorfide all their rights and [respondent] Gaspar Gonzalez, Jr., answered the letter
interests in the housing unit at Emily Homes in dated March 15, 1999 and reiterated that it was at the
consideration of P70,000.00. The Memorandum of instance of Joyce Ardiente that the water line was cut off
Agreement carries a stipulation: (Records, p. 161).

“4. That the water and power bill of the subject property Aggrieved, on April 14, 1999, Ma. Theresa Pastorfide [and
shall be for the account of the Second Party (Ma. Theresa her husband] filed [a] complaint for damages [against
Pastorfide) effective June 1, 1994.” (Records, p. 47) petitioner, COWD and its manager Gaspar Gonzalez]
(Records, pp. 2-6).
vis-a-vis Ma. Theresa Pastorfide's assumption of the
payment of the mortgage loan secured by Joyce Ardiente In the meantime, Ma. Theresa Pastorfide's water line was
from the National Home Mortgage (Records, Exh. “A”, pp. only restored and reconnected when the [trial] court
468-469) issued a writ of preliminary mandatory injunction on
December 14, 1999 (Records, p. 237). 4
For four (4) years, Ma. Theresa's use of the water
connection in the name of Joyce Ardiente was never After trial, the RTC rendered judgment holding as follows:
questioned nor perturbed (T.S.N., October 31, 2000, pp.
7-8) until on March 12, 1999, without notice, the water xxx x
connection of Ma. Theresa was cut off. Proceeding to the
office of the Cagayan de Oro Water District (COWD) to In the exercise of their rights and performance of their
complain, a certain Mrs. Madjos told Ma. Theresa that she duties, defendants did not act with justice, gave plaintiffs
was delinquent for three (3) months corresponding to the their due and observe honesty and good faith. Before
months of December 1998, January 1999, and February disconnecting the water supply, defendants COWD and
1999. Ma. Theresa argued that the due date of her Engr. Gaspar Gonzales did not even send a disconnection
payment was March 18, 1999 yet (T.S.N., October 31, notice to plaintiffs as testified to by Engr. Bienvenido
2000, pp. 11-12). Mrs. Madjos later told her that it was at Batar, in-charge of the Commercial Department of
the instance of Joyce Ardiente that the water line was cut defendant COWD. There was one though, but only three
off (T.S.N., February 5, 2001, p. 31). (3) days after the actual disconnection on March 12, 1999.
The due date for payment was yet on March 15. Clearly,
they did not act with justice. Neither did they observe
honesty. Petitioner, COWD and Gonzalez filed an appeal with the
CA.
They should not have been swayed by the prodding of
Joyce V. Ardiente. They should have investigated first as On August 28, 2003, the CA promulgated its assailed
to the present ownership of the house. For doing the act Decision disposing as follows:
because Ardiente told them, they were negligent.
Defendant Joyce Ardiente should have requested before IN VIEW OF ALL THE FOREGOING, the appealed decision
the cutting off of the water supply, plaintiffs to pay. While is AFFIRMED, with the modification that the awarded
she attempted to tell plaintiffs but she did not have the damages is reduced to P100,000.00 each for moral and
patience of seeing them. She knew that it was plaintiffs exemplary damages, while attorney's fees is lowered to
who had been using the water four (4) years ago and not P25,000.00. Costs against appellants.
hers. She should have been very careful. x x x 5
SO ORDERED. 7
The dispositive portion of the trial court's Decision reads,
thus: The CA ruled, with respect to petitioner, that she has a
“legal duty to honor the possession and use of water line
WHEREFORE, premises considered, judgment is hereby by Ma. Theresa Pastorfide pursuant to their Memorandum
rendered ordering defendants [Ardiente, COWD and of Agreement” and “that when [petitioner] applied for its
Gonzalez] to pay jointly and severally plaintiffs, the disconnection, she acted in bad faith causing prejudice and
following sums: [injury to] Ma. Theresa Pastorfide.” 8

(a) P200,000.00 for moral damages; As to COWD and Gonzalez, the CA held that they “failed to
give a notice of disconnection and derelicted in
(b) 200,000.00 for exemplary damages; and reconnecting the water line despite payment of the unpaid
bills by the [respondent spouses Pastorfide].” 9
(c) 50,000.00 for attorney's fee.
Petitioner, COWD and Gonzalez filed their respective
The cross-claim of Cagayan de Oro Water District and Motions for Reconsideration, but these were denied by the
Engr. Gaspar Gonzales is hereby dismissed. The Court is CA in its Resolution dated December 17, 2003.
not swayed that the cutting off of the water supply of
plaintiffs was because they were influenced by defendant COWD and Gonzalez filed a petition for review
Joyce Ardiente. They were negligent too for which they on certiorari with this Court, which was docketed as G.R.
should be liable. No. 161802. However, based on technical grounds and on
the finding that the CA did not commit any reversible error
SO ORDERED. 6 in its assailed Decision, the petition was denied via a
Resolution 10 issued by this Court on March 24, 2004.
COWD and Gonzalez filed a motion for reconsideration, but 7.3 THE HONORABLE COURT OF APPEALS SERIOUSLY
the same was denied with finality through this Court's ERRED WHEN IT DISREGARDED THE FACT THAT
Resolution 11 dated June 28, 2004. RESPONDENT SPOUSES PASTORFIDE ARE LIKEWISE
BOUND TO OBSERVE ARTICLE 19 OF THE NEW CIVIL
Petitioner, on the other hand, timely filed the instant CODE, i.e., IN THE EXERCISE OF THEIR RIGHTS AND IN
petition with the following Assignment of Errors: THE PERFORMANCE OF THEIR DUTIES TO ACT WITH
JUSTICE, GIVE EVERYONE HIS DUE AND OBSERVE
7.1 HONORABLE COURT OF APPEALS (ALTHOUGH IT HAS HONESTY AND GOOD FAITH.
REDUCED THE LIABILITY INTO HALF) HAS STILL
COMMITTED GRAVE AND SERIOUS ERROR WHEN IT 7.4 THE HONORABLE COURT OF APPEALS GRAVELY
UPHELD THE JOINT AND SOLIDARY LIABILITY OF ERRED WHEN IT GRANTED AN AWARD OF MORAL AND
PETITIONER JOYCE V. ARDIENTE WITH CAGAYAN DE ORO EXEMPLARY DAMAGES AND ATTORNEY'S FEES AS
WATER DISTRICT (COWD) AND ENGR. GASPAR D. AGAINST PETITIONER ARDIENTE. 12
GONZALES FOR THE LATTER'S FAILURE TO SERVE NOTICE
UPON RESPONDENTS SPOUSES PASTORFIDE PRIOR TO At the outset, the Court noticed that COWD and Gonzalez,
THE ACTUAL DISCONNECTION DESPITE EVIDENCE who were petitioner's co-defendants before the RTC and
ADDUCED her co-appellants in the CA, were impleaded as
DURING TRIAL THAT EVEN WITHOUT PETITIONER'S respondents in the instant petition. This cannot be done.
REQUEST, COWD WAS ALREADY SET TO EFFECT Being her co-parties before the RTC and the CA, petitioner
DISCONNECTION OF RESPONDENTS' WATER SUPPLY DUE cannot, in the instant petition for review on certiorari,
TO NON-PAYMENT OF ACCOUNT FOR THREE (3) MONTHS. make COWD and Gonzalez, adversary parties. It is a grave
mistake on the part of petitioner's counsel to treat COWD
7.2 THE HONORABLE COURT OF APPEALS COMMITTED and Gonzalez as respondents. There is no basis to do so,
GRAVE AND SERIOUS ERROR WHEN IT RULED TOTALLY considering that, in the first place, there is no showing that
AGAINST PETITIONER AND FAILED TO FIND THAT petitioner filed a cross-claim against COWD and Gonzalez.
RESPONDENTS ARE GUILTY OF CONTRIBUTORY Under Section 2, Rule 9 of the Rules of Court, a cross-
NEGLIGENCE WHEN THEY FAILED TO PAY THEIR WATER claim which is not set up shall be barred. Thus, for failing
BILLS FOR THREE MONTHS AND TO MOVE FOR THE to set up a cross-claim against COWD and Gonzalez before
TRANSFER OF THE COWD ACCOUNT IN THEIR NAME, the RTC, petitioner is already barred from doing so in the
WHICH WAS A VIOLATION OF THEIR MEMORANDUM OF present petition.
AGREEMENT WITH PETITIONER JOYCE V. ARDIENTE.
RESPONDENTS LIKEWISE DELIBERATELY FAILED TO More importantly, as shown above, COWD and Gonzalez's
EXERCISE DILIGENCE OF A GOOD FATHER OF THE FAMILY petition for review on certiorari filed with this Court was
TO MINIMIZE THE DAMAGE UNDER ART. 2203 OF THE already denied with finality on June 28, 2004, making the
NEW CIVIL CODE. presently assailed CA Decision final and executory insofar
as COWD and Gonzalez are concerned. Thus, COWD and to their Memorandum of Agreement. However, the remedy
Gonzalez are already precluded from participating in the to enforce such right is not to cause the disconnection of
present petition. They cannot resurrect their lost cause by the respondent spouses' water supply. The exercise of a
filing pleadings this time as respondents but, nonetheless, right must be in
reiterating the same prayer in their previous pleadings accordance with the purpose for which it was established
filed with the RTC and the CA. and must not be excessive or unduly harsh; there must be
no intention to harm another. 15 Otherwise, liability for
As to the merits of the instant petition, the Court likewise damages to the injured party will attach. 16 In the present
noticed that the main issues raised by petitioner are case, intention to harm was evident on the part of
factual and it is settled that the resolution of factual issues petitioner when she requested for the disconnection of
is the function of lower courts, whose findings on these respondent spouses’ water supply without warning or
matters are received with respect and considered binding informing the latter of such request. Petitioner claims that
by the Supreme Court subject only to certain exceptions, her request for disconnection was based on the advise of
none of which is present in this instant petition.13 This is COWD personnel and that her intention was just to compel
especially true when the findings of the RTC have been the Spouses Pastorfide to comply with their agreement
affirmed by the CA as in this case. 14 that petitioner's account with COWD be transferred in
respondent spouses' name. If such was petitioner's only
In any case, a perusal of the records at hand would readily intention, then she should have advised respondent
show that the instant petition lacks merit. spouses before or immediately after submitting her
request for disconnection, telling them that her request
Petitioner insists that she should not be held liable for the was simply to force them to comply with their obligation
disconnection of respondent spouses' water supply, under their Memorandum of Agreement. But she did not.
because she had no participation in the actual What made matters worse is the fact that COWD
disconnection. However, she admitted in the present undertook the disconnection also without prior notice and
petition that it was she who requested COWD to even failed to reconnect the Spouses Pastorfide’s water
disconnect the Spouses Pastorfide's water supply. This supply despite payment of their arrears. There was clearly
was confirmed by COWD and Gonzalez in their cross-claim an abuse of right on the part of petitioner, COWD and
against petitioner. While it was COWD which actually Gonzalez. They are guilty of bad faith.
discontinued respondent spouses' water supply, it cannot
be denied that it was through the instance of petitioner The principle of abuse of rights as enshrined in Article 19
that the Spouses Pastorfide's water supply was of the Civil Code provides that every person must, in the
disconnected in the first place. exercise of his rights and in the performance of his duties,
act with justice, give everyone his due, and observe
It is true that it is within petitioner's right to ask and even honesty and good faith.
require the Spouses Pastorfide to cause the transfer of the
former's account with COWD to the latter's name pursuant
In this regard, the Court's ruling in Yuchengco v. The xxx x
Manila Chronicle Publishing Corporation 17 is instructive,
to wit: This article, known to contain what is commonly referred
to as the principle of abuse of rights, sets certain
xxx x standards which must be observed not only in the exercise
of one's rights, but also in the performance of one's duties.
This provision of law sets standards which must be These standards are the following: to act with justice; to
observed in the exercise of one’s rights as well as in the give everyone his due; and to observe honesty and good
performance of its duties, to wit: to act with justice; give faith. The law, therefore, recognizes a primordial limitation
everyone his due; and observe honesty and good faith. on all rights; that in their exercise, the norms of human
conduct set forth in Article 19 must be observed. A
In Globe Mackay Cable and Radio Corporation v. Court of right, though by itself legal because recognized or
Appeals, it was elucidated that while Article 19 “lays down granted by law as such, may nevertheless become
a rule of conduct for the government of human relations the source of some illegality. When a right is
and for the maintenance of social order, it does not exercised in a manner which does not conform with
provide a remedy for its violation. Generally, an action for the norms enshrined in Article 19 and results in
damages under either Article 20 or Article 21 would be damage to another, a legal wrong is thereby
proper.” The Court said: committed for which the wrongdoer must be held
responsible. But while Article 19 lays down a rule of
One of the more notable innovations of the New Civil Code conduct for the government of human relations and for the
is the codification of "some basic principles that are to be maintenance of social order, it does not provide a remedy
observed for the rightful relationship between human for its violation. Generally, an action for damages under
beings and for the stability of the social order." [REPORT either Article 20 or Article 21 would be proper.
ON THE CODE COMMISSION ON THE PROPOSED CIVIL
CODE OF THE PHILIPPINES, p. 39]. The framers of the Corollarilly, Article 20 provides that “every person who,
Code, seeking to remedy the defect of the old Code which contrary to law, willfully or negligently causes damage to
merely stated the effects of the law, but failed to draw out another shall indemnify the latter for the same.” It speaks
its spirit, incorporated certain fundamental precepts which of the general sanctions of all other provisions of law which
were "designed to indicate certain norms that spring from do not especially provide for its own sanction. When a right
the fountain of good conscience" and which were also is exercised in a manner which does not conform to the
meant to serve as "guides for human conduct [that] standards set forth in the said provision and results in
should run as golden threads through society, to the end damage to another, a legal wrong is thereby committed
that law may approach its supreme ideal, which is the for which the wrongdoer must be responsible. Thus, if the
sway and dominance of justice." (Id.) Foremost among provision does not provide a remedy for its violation, an
these principles is that pronounced in Article 19 x x x. action for damages under either Article 20 or Article 21 of
the Civil Code would be proper.
 for more than nine (9) months, and such deprivation
The question of whether or not the principle of abuse of would have continued were it not for the relief granted by
rights has been violated resulting in damages under Article the RTC.
20 or other applicable provision of law, depends on the
circumstances of each case. x x x 18 With respect to the award of attorney's fees, Article 2208
of the Civil Code provides, among others, that such fees
To recapitulate, petitioner's acts which violated the may be recovered when exemplary damages are awarded,
abovementioned provisions of law is her unjustifiable act when the defendant's act or omission has compelled the
of having the respondent spouses' water supply plaintiff to litigate with third persons or to incur expenses
disconnected, coupled with her failure to warn or at least to protect his interest, and where the defendant acted in
notify respondent spouses of such intention. On the part gross and evident bad faith in refusing to satisfy the
of COWD and Gonzalez, it is their failure to give prior plaintiffs' plainly valid, just and demandable claim.
notice of the impending disconnection and their
subsequent neglect to reconnect respondent spouses' WHEREFORE, instant petition for review
water supply despite the latter's settlement of their on certiorari is DENIED. The Decision and Resolution of
delinquent account. the Court of Appeals, dated August 28, 2003 and
December 17, 2003, respectively, in CA-G.R. CV No.
On the basis of the foregoing, the Court finds no cogent 73000 are AFFIRMED.
reason to depart from the ruling of both the RTC and the
CA that petitioner, COWD and Gonzalez are solidarily SO ORDERED.
liable.
DIOSDADO M. PERALTA
The Spouses Pastorfide are entitled to moral damages Associate Justice
based on the provisions of Article 2219, 19 in connection
with Articles 20 20 and 21 21 of the Civil Code. WE CONCUR:

As for exemplary damages, Article 2229 provides that PRESBITERO J. VELASCO, JR.
exemplary damages may be imposed by way of example Associate Justice
or correction for the public good. Nonetheless, exemplary Chairperson
damages are imposed not to enrich one party or
impoverish another, but to serve as a deterrent against or ROBERTO A. ABAD
as a negative incentive to curb socially deleterious Associate Justice
actions.22 In the instant case, the Court agrees with the
CA in sustaining the award of exemplary damages, JOSE CATRAL MENDOZA
although it reduced the amount granted, considering that Associate Justice
respondent spouses were deprived of their water supply
MARVIC MARIO VICTOR F. LEONEN
Associate Justice 4 Rollo, pp. 60-62.

AT T ES TA T ION 5 Id. at 35-36.

I attest that the conclusions in the above Decision had 6 Id. at 37.
been reached in consultation before the case was assigned
to the writer of the opinion of the Court's Division. 7 Id. at 67. (Emphasis in the original)

PRESBITERO J. VELASCO, JR. 8 Id. at 65.

Associate Justice
Chairperson. Third Division 9 Id. at 64.

C ER T IFIC A TION 10 Id. at 219.

Pursuant to Section 13, Article VIII of the Constitution and 11 Id. at 220
the Division Chairperson's Attestation, I certify that the
conclusions in the above ·Decision had been reached in 12 Id. at 14.
consultation before the case was assigned to the writer of
the opinion of the Court's Division. 13 Philippine National Bank v. DKS International, Inc.,
G.R. No. 179161, January 22, 2010, 610 SCRA 603, 621.
MARIA LOURDES P. A. SERENO
Chief Justice 14 Id.

15 Uypitching v. Quiamco, G.R. No. 146322, December 6,

Footnotes 2006, 510 SCRA 172, 179.

* Spelled as Gonzales in other parts of the rollo and 16 Id.

records.
17 G.R. No. 184315, November 28, 2011, 661 SCRA 392.
1 Penned by Associate Justice Conrado M. Vasquez, Jr.,
with Associate Justices Edgardo P. Cruz and Noel G. Tijam, 18 Id. at 402-404. (Emphasis supplied)
concurring; rolla, pp. 60-67.
19 Art. 2219. Moral damages may be recovered in the
2 Id. at 68. following and analogous cases:

3 Penned by Judge Leonardo N. Demecillo, id. at 27-37. xxx x

 the Court is whether or not a criminal case for bigamy
(10) Acts and actions referred to in Articles 21, 26, 27, pending before the Court of First Instance of Manila should
28. 29, 30, 32, 34 and 35. be suspended in view of a civil case for annulment of
marriage pending before the Juvenile and Domestic
xxx x Relations Court on the ground that the latter constitutes a
prejudicial question. The respondent judge ruled in the
20 Every person who, contrary to law, willfully or negative. We sustain him.
negligently causes damage to another, shall indemnify the
latter for the same. The pertinent facts as set forth in the records follow. On
January 23, 1979, the City Fiscal of Manila acting thru
21 Any person who willfully causes loss or injury to Assistant City Fiscal Amado N. Cantor filed an information
another in a manner that is contrary to morals, good for bigamy against herein petitioner, Leonilo C. Donato
customs or public policy shall compensate the latter for with the Court of First Instance of Manila, docketed as
the damage. Criminal Case No. 43554 and assigned to Branch XXXII of
said court. The information was filed based on the
22 Yuchengco v. The Manila Chronicle Publishing complaint of private respondent Paz B. Abayan.
Corporation, supra note 17, at 405.
On September 28, 1979, before the petitioner's
arraignment, private respondent filed with the Juvenile
and Domestic Relations Court of Manila a civil action for
LEONILO C. DONATO, petitioners, vs. HON. declaration of nullity of her marriage with petitioner
contracted on September 26, 1978, which action was
ARTEMON D. LUNA, PRESIDING JUDGE, COURT OF
docketed as Civil Case No. E-02627. Said civil case was
FIRST INSTANCE OF MANILA, BRANCH XXXII; HON. based on the ground that private respondent consented to
entering into the marriage, which was petitioner Donato's
JOSE FLAMINIANO, CITY FISCAL OF MANILA; PAZ B.
second one, since she had no previous knowledge that
ABAYAN, respondents. petitioner was already married to a certain Rosalinda R.
G.R. No. L-53642 | 1988-04-15 Maluping on June 30, 1978. Petitioner Donato's answer in
the civil case for nullity interposed the defense that his
DECISION second marriage was void since it was solemnized without
a marriage license and that force, violence, intimidation
GANCAYCO, J.: and undue influence were employed by private respondent
to obtain petitioner's consent to the marriage. Prior to the
solemnization of the subsequent or second marriage,
In this petition for certiorari and prohibition with petitioner and private respondent had lived together and
preliminary injunction, the question for the resolution of deported themselves as husband and wife without the
benefit of wedlock for a period of at least five years as the cognizance of which pertains to another tribunal. 3 It
evidenced by a joint affidavit executed by them on is one based on a fact distinct and separate from the crime
September 26, 1978, for which reason, the requisite but so intimately connected with it that it determines the
marriage license was dispensed with pursuant to Article 76 guilt or innocence of the accused, and for it to suspend the
of the New Civil Code pertaining to marriages of criminal action, it must appear not only that said case
exceptional character. involves facts intimately related to those upon which the
criminal prosecution would be based but also that in the
Prior to the date set for the trial on the merits of Criminal resolution of the issue or issues raised in the civil case, the
Case No. 43554, petitioner filed a motion to suspend the guilt or innocence of the accused would necessarily be
proceedings of said case contending that Civil Case No. E- determined. 4 A prejudicial question usually comes into
02627 seeking the annulment of his second marriage filed play in a situation where a civil action and a criminal action
by private respondent raises a prejudicial question which may proceed, because howsoever the issue raised in the
must first be determined or decided before the criminal civil action is resolved would be determinative juris et de
case can proceed. jure of the guilt or innocence of the accused in a criminal
case. 5
In an order dated April 7, 1980. Hon. Artemon D. Luna
denied the motion to suspend the proceedings in Criminal The requisites of a prejudicial question do not obtain in the
Case No. 43554 for bigamy. Respondent judge's basis for case at bar. It must be noted that the issue before the
denial is the ruling laid down in the case of Landicho vs. Juvenile and Domestic Relations Court touching upon the
Relova. 1 The order further directed that the proceedings nullity of the second marriage is not determinative of
in the criminal case can proceed as scheduled. petitioner Donato's guilt or innocence in the crime of
bigamy. Furthermore, it was petitioner's second wife, the
A motion for reconsideration was filed by herein petitioner herein private respondent Paz B. Abayan who filed the
thru counsel citing as one of his grounds for suspension of complaint for annulment of the second marriage on the
proceedings the ruling laid down by this Court in the case ground that her consent was obtained through deceit.
of De la Cruz vs. Ejercito, 2 which was a much later case
than that cited by respondent judge in his order of denial. Petitioner Donato raised the argument that the second
marriage should have been declared null and void on the
The motion for reconsideration of the said order was ground of force, threats and intimidation allegedly
likewise denied in an order dated April 14, 1980, for lack employed against him by private respondent only
of merit. Hence, the present petition for certiorari and sometime later when he was required to answer the civil
prohibition with preliminary injunction. action for annulment of the second marriage. The doctrine
elucidated upon by the case of Landicho vs. Relova 6 may
A prejudicial question has been defined to be one which be applied to the present case. Said case states that:
arises in a case, the resolution of which question is a
logical antecedent of the issue involved in said case, and "The mere fact that there are actions to annul the
marriages entered into by the accused in a bigamy case In the case at bar, petitioner has not even sufficiently
does not mean that 'prejudicial questions' are shown that his consent to the second marriage has been
automatically raised in civil actions as to warrant the obtained by the use of threats, force and intimidation.
suspension of the criminal case. In order that the case of
annulment of marriage be considered a prejudicial Petitioner calls the attention of this Court to the fact that
question to the bigamy case against the accused, it must the case of De la Cruz vs. Ejercito is a later case and as
be shown that the petitioner's consent to such marriage such it should be the one applied to the case at bar. We
must be the one that was obtained by means of duress, cannot agree. The situation in the case at bar is markedly
force and intimidation to show that his act in the second different. In the aforecited case it was accused Milagros
marriage must be involuntary and cannot be the basis of dela Cruz who was charged with bigamy for having
his conviction for the crime of bigamy. The situation in the contracted a second marriage while a previous one
present case is markedly different. At the time the existed. Likewise, Milagros dela Cruz was also the one who
petitioner was indicted for bigamy on February 27, 1963, filed an action for annulment on the ground of duress, as
the fact that two marriage ceremonies had been contradistinguished from the present case wherein it was
contracted appeared to be indisputable. And it was the private respondent Paz B. Abayan, petitioner's second
second spouse, not the petitioner who filed the action for wife, who filed a complaint for annulment of the second
nullity on the ground of force, threats and intimidat ion. marriage on the ground that her consent was obtained
And it was only on June 15, 1963, that petitioner, as through deceit since she was not aware that petitioner's
defendant in the civil action, filed a third-party complaint first marriage was still subsisting. Moreover, in De la Cruz,
against the first spouse alleging that his marriage with her a judgment was already rendered in the civil case that the
should be declared null and void on the ground of force, second marriage of De la Cruz was null and void, thus
threats and intimidation. Assuming that the first marriage determinative of the guilt or innocence of the accused in
was null and void on the ground alleged by petitioner, the the criminal case. In the present case, there is as yet no
fact would not be material to the outcome of the criminal such judgment in the civil case.
case. Parties to the marriage should not be permitted to
judge for themselves its nullity, for the same must be Pursuant to the doctrine discussed in Landicho vs. Relova,
submitted to the judgment of the competent courts and petitioner Donato cannot apply the rule on prejudicial
only when the nullity of the marriage is so declared can it questions since a case for annulment of marriage can be
be held as void, and so long as there is no such declaration considered as a prejudicial question to the bigamy case
the presumption is that the marriage exists. Therefore, he against the accused only if it is proved that the petitioner's
who contracts a second marriage before the judicial consent to such marriage was obtained by means of
declaration of nullity of the first marriage assumes the risk duress, violence and intimidation in order to establish that
of being prosecuted for bigamy. The lower court therefore, his act in the subsequent marriage was an involuntary one
has not abused, much less gravely abused, its discretion and as such the same cannot be the basis for conviction.
in failing to suspend the hearing as sought by petitioner." The preceding elements do not exist in the case at bar.
Obviously, petitioner merely raised the issue of prejudicial exist, the order of denial issued by the respondent judge
question to evade the prosecution of the criminal case. The dated April 4, 1980 should be sustained.
records reveal that prior to petitioner's second marriage
on September 26, 1978, he had been living with private WHEREFORE, in view of the foregoing, the instant petition
respondent Paz B. Abayan as husband and wife for more is hereby DISMISSED for lack of merit. We make no
than five years without the benefit of marriage. Thus, pronouncement as to costs.
petitioner's averments that his consent was obtained by
private respondent through force, violence, intimidation SO ORDERED.
and undue influence in entering a subsequent marriage is
belied by the fact that both petitioner and private Teehankee (C.J.), Narvasa, Cruz and Griño-Aquino, JJ.,
respondent executed an affidavit which stated that they concur.
had lived together as husband and wife without benefit of
marriage for five years, one month and one day until their ---------------
marital union was formally ratified by the second marriage Footnotes
and that it was private respondent who eventually filed the
civil action for nullity. 1. 22 SCRA 731.
2. 68 SCRA 1.
Another event which militates against petitioner's 3. People vs. Aragon, 94 Phil. 357; Isip vs. Gonzales, 39
contentions is the fact that it was only when Civil Case No. SCRA 255; Rojas vs. People, 57 SCRA 243.
E-02627 was filed on September 28, 1979, or more than 4. Librado vs. Coscolluela, Jr., 116 SCRA 303.
the lapse of one year from the solemnization of the second 5. Ibid.
marriage that petitioner came up with the story that his 6. 22 SCRA 73.
consent to the marriage was secured through the use of
force, violence, intimidation and undue influence.
Petitioner also continued to live with private respondent
until November 1978, when the latter left their abode upon ROLANDO LANDICHO, petitioner, vs. HON.
learning that Leonilo Donato was already previously
married. LORENZO RELOVA, in his capacity as Judge of the
Court of First Instance of Batangas, Branch I, and
In the light of the preceding factual circumstances, it can
be seen that the respondent Judge did not err in his earlier
PEOPLE OF THE PHILIPPINES, respondents.
order. There is no pivotal issue that must be preemptively
resolved in Civil Case No. E-02627 before proceedings in
Jose W. Diokno for petitioner.
the criminal action for bigamy can be undertaken.
Office of the Solicitor General for respondents.
Accordingly, there being no prejudicial question shown to G.R. No. L-22579 | 1968-02-23
 Republic of the Philippines said case, filed a third-party complaint, against the third-
SUPREME COURT party defendant Elvira Makatangay, the first spouse,
Manila praying that his marriage with the said third-party
defendant be declared null and void, on the ground that
EN BANC by means of threats, force and intimidation, she compelled
him to appear and contract marriage with her before the
DECISION Justice of the Peace of Makati, Rizal.

FERNANDO, J.: Thereafter, on October 7, 1963, petitioner moved

to suspend the hearing of the criminal case pending the
In this petition for certiorari and prohibition with decision on the question of the validity of the two
preliminary injunction, the question before the Court is marriages involved in the pending civil suit. Respondent
whether or not the existence of a civil suit for the Judge on November 19, 1963 denied the motion for lack
annulment of marriage at the instance of the second wife of merit. Then came a motion for reconsideration to set
against petitioner, with the latter in turn filing a third party aside the above order, which was likewise denied on March
complaint against the first spouse for the annulment of the 2, 1964. Hence this petition, filed on March 13, 1964.
first marriage, constitutes a prejudicial question in a
pending suit for bigamy against him. Respondent, Judge In a resolution of this Court of March 17, 1964,
Relova answered in the negative. We sustain him. respondent Judge was required to answer within ten (10)
days, with a preliminary injunction being issued to restrain
The pertinent facts as set forth in the petition him from further proceeding with the prosecution of the
follow. On February 27, 1963, petitioner was charged bigamy case. In the meanwhile, before the answer was
before the Court of First Instance of Batangas, Branch I, filed there was an amended petition for certiorari, the
presided over by respondent Judge, with the offense, of amendment consisting solely in the inclusion of the People
bigamy. It was alleged in the information that petitioner of the Philippines as another respondent. This Court
"being then lawfully married to Elvira Makatangay, which admitted such amended petition in a resolution of April 3,
marriage has not been legally dissolved, did then and 1964.
there wilfully, unlawfully and feloniously contract a second
marriage with Fe Lourdes Pasia." On March 15, 1963, an Then came the answer to the amended petition on
action was filed before the Court of First Instance May 14 of that year where the statement of facts as above
ofBatangas, likewise presided plaintiff respondent Judge detailed was admitted, with the qualifications that the
Fe Lourdes Pasia, seeking to declare her marriage to bigamy charge was filed upon the complaint of the first
petitioner as null and void ab initio because of the alleged spouse Elvira Makatangay. It alleged as one of its special
use of force, threats and intimidation allegedly employed and affirmative defenses that the mere fact that "there are
by petitioner and because of its allegedly bigamous actions to annul the marriages entered into by the accused
character. On June 15, 1963, petitioner as defendant in in a bigamy case does not mean that 'prejudicial questions
are automatically raised in said civil actions as to warrant To the same effect is the doctrine announced
the suspension of the criminal case for bigamy." 1 The in Zapanta v. Mendoza. 4 As explained in the opinion of
answer stressed that even on the assumption that the first Justice Dizon: "We have heretofore defined a prejudicial
marriage was null and void on the ground alleged by question as that which arises in a case, the resolution of
petitioner, the fact would not be material to the outcome which is a logical antecedent of the issue involved therein,
of the criminal case. It continued, referring to Viada, that and the cognizance of which pertains to another tribunal.
"parties to the marriage should not be permitted to judge . . . The prejudicial question — we further said — must be
for themselves its nullity, for this must be submitted to the determinative of the case before the court, and jurisdiction
judgment of competent courts and only when the nullity to try the same must be lodged in another court. . . . These
of a marriage is so declared can it be held as void, and so requisites are present in the case at bar. Should the
long as there is no such declaration the presumption is question for annulment of the second marriage pending in
that the marriage exists. Therefore, according to Viada, he the Court of First Instance of Pampanga prosper on the
who contracts a second marriage before the judicial ground that, according to the evidence, petitioner's
declaration of nullity of the first marriage incurs the consent thereto was obtained by means of duress, force
penalty provided for in this Article. . . ."2 and intimidation, it is obvious that his act was involuntary
and can not be the basis of his conviction for the crime of
This defense is in accordance with the principle bigamy with which he was charged in the Court of First
implicit in authoritative decisions of this Court. In Merced Instance of Bulacan. Thus the issue involved in the action
v. Diez, 3 what was in issue was the validity of the second for the annulment of the second marriage is determinative
marriage, "which must be determined before hand in the of petitioner's guilt or innocence of the crime of bigamy. .
civil action before the criminal action can proceed." . ."
According to the opinion of Justice Labrador: "We have a
situation where the issue of the validity of the second The situation in this case is markedly different. At
marriage can be determined or must first be determined the time the petitioner was indicted for bigamy on
in the civil action before the criminal action for bigamy can February 27, 1963, the fact that two marriage ceremonies
be prosecuted. The question of the validity of the second had been contracted appeared to be indisputable. Then on
marriage is, therefore, a prejudicial question because March 15, 1963, it was the second spouse, not petitioner
determination of the validity of the second marriage is who filed an action for nullity on the ground of force,
determinable in the civil action and must precede the threats and intimidation. It was sometime later, on June
criminal action for bigamy." It was the conclusion of this 15, 1963, to be precise, when petitioner, as defendant in
Court then that for petitioner Merced to be found guilty of the civil action, filed a third-party complaint against the
bigamy, the second marriage which he contracted "must first spouse alleging that his marriage with her should be
first be declared valid." Its validity having been questioned declared null and void on the ground of force, threats and
in the civil action, there must be a decision in such a case intimidation. As was correctly stressed in the answer of
"before the prosecution for bigamy can proceed." respondent Judge relying on Viada, parties to a marriage
should not be permitted to judge for themselves its nullity,
only competent courts having such authority. Prior to such Roe vs. wade
declaration of nullity, the validity of the first marriage is
beyond question. A party who contracts a second marriage Roe vs. Wade | 1973-01-22
then assumes the risk of being prosecuted for bigamy. MR. JUSTICE BLACKMUN delivered the opinion of the Court.
Such was the situation of petitioner. There is no MR. JUSTICE REHNQUIST, dissenting.
occasion to indulge in the probability that the third-party
MR. JUSTICE STEWART, concurring.
complaint against the first wife brought almost five
months after the prosecution for bigamy was started could A pregnant single woman (Roe) brought a class action challenging
have been inspired by the thought that he could thus give the constitutionality of the Texas criminal abortion laws, which
color to a defense based on an alleged prejudicial proscribe procuring or attempting an abortion except on medical
question. The above judicial decisions as well as the advice for the purpose of saving the mother's life. A licensed
opinion of Viada preclude a finding that respondent Judge physician (Hallford), who had two state abortion prosecutions
abused, much less gravely abused, his discretion in failing pending against him, was permitted to intervene. A childless
to suspend the hearing as sought by petitioner. married couple (the Does), the wife not being pregnant, separately
attacked the laws, basing alleged injury on the future possibilities of
WHEREFORE, the petition for certiorari is denied contraceptive failure, pregnancy, unpreparedness for parenthood,
and the writ of preliminary injunction issued dissolved. and impairment of the wife's health. A three-judge District Court,
With costs. which consolidated the actions, held that Roe and Hallford, and
members of their classes, had standing to sue and presented
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, justiciable controversies. Ruling that declaratory, though not
Bengzon, J.P., Zaldivar, Sanchez, Castro and Angeles, JJ., injunctive, relief was warranted, the court declared the abortion
concur. statutes void as vague and overbroadly infringing those plaintiffs'
Ninth and Fourteenth Amendment rights. The court ruled the Does'
___________ complaint not justiciable. Appellants directly appealed to this Court
on the injunctive rulings, and appellee cross-appealed from the
Special and Affirmative Defenses, Answer, par. 1.
1 District Court's grant of declaratory relief to Roe and Hallford. Held:
1. While 28 U. S. C. § 1253 authorizes no direct appeal to this Court
Idem, citing 3 Viada, Penal Code, p. 275.
2
from the grant or denial of declaratory relief alone, review is not
foreclosed when the case is properly before the Court on appeal
L-15315, August 26, 1960.
3
from specific denial of injunctive relief and the arguments as to both
injunctive and declaratory relief are necessarily identical. P. 123.
L-14534, February 28, 1962.
4

2. Roe has standing to sue; the Does and Hallford do not. Pp. 123-
129.
(a) Contrary to appellee's contention, the natural termination of (c) For the stage subsequent to viability the State, in promoting its
Roe's pregnancy did not moot her suit. Litigation involving interest in the potentiality of human life, may, if it chooses, regulate,
pregnancy, which is "capable of repetition, yet evading review," is and even proscribe, abortion except where necessary, in
an exception to the usual federal rule that an actual controversy appropriate medical judgment, for the preservation of the life or
must exist at review stages and not simply when the action is health of the mother. Pp. 163-164; 164-165.
initiated. Pp. 124-125.
4. The State may define the term "physician" to mean only a
(b) The District Court correctly refused injunctive, but erred in physician currently licensed by the State, and may proscribe any
granting declaratory, relief to Hallford, who alleged no federally abortion by a person who is not a physician as so defined. P. 165.
protected right not assertable as a defense against the good-faith
state prosecutions pending against him. Samuels v. Mackell, 401 U.S. 5. It is unnecessary to decide the injunctive relief issue since the
66. Pp. 125-127. Texas authorities will doubtless fully recognize the Court's ruling
that the Texas criminal abortion statutes are unconstitutional. P.
(c) The Does' complaint, based as it is on contingencies, any one or 166.
more of which may not occur, is too speculative to present an actual
case or controversy. Pp. 127-129. MR. JUSTICE BLACKMUN delivered the opinion of the Court.
3. State criminal abortion laws, like those involved here, that except This Texas federal appeal and its Georgia companion, Doe v. Bolton,
from criminality only a life-saving procedure on the mother's behalf post, p. 179, present constitutional challenges to state criminal
without regard to the stage of her pregnancy and other interests abortion legislation. The Texas statutes under attack here are
involved violate the Due Process Clause of the Fourteenth typical of those that have been in effect in many States for
Amendment, which protects against state action the right to privacy, approximately a century. The Georgia statutes, in contrast, have a
including a woman's qualified right to terminate her pregnancy. modern cast and are a legislative product that, to an extent at least,
Though the State cannot override that right, it has legitimate obviously reflects the influences of recent attitudinal change, of
interests in protecting both the pregnant woman's health and the advancing medical knowledge and techniques, and of new thinking
potentiality of human life, each of which interests grows and about an old issue.
reaches a "compelling" point at various stages of the woman's
approach to term. Pp. 147-164. We forthwith acknowledge our awareness of the sensitive and
emotional nature of the abortion controversy, of the vigorous
(a) For the stage prior to approximately the end of the first opposing views, even among physicians, and of the deep and
trimester, the abortion decision and its effectuation must be left to seemingly absolute convictions that the subject inspires. One's
the medical judgment of the pregnant woman's attending physician. philosophy, one's experiences, one's exposure to the raw edges of
Pp. 163, 164. human existence, one's religious training, one's attitudes toward life
and family and their values, and the moral standards one
(b) For the stage subsequent to approximately the end of the first establishes and seeks to observe, are all likely to influence and to
trimester, the State, in promoting its interest in the health of the color one's thinking and conclusions about abortion.
mother, may, if it chooses, regulate the abortion procedure in ways
that are reasonably related to maternal health. Pp. 163, 164. In addition, population growth, pollution, poverty, and racial
overtones tend to complicate and not to simplify the problem.
Our task, of course, is to resolve the issue by constitutional that the Texas criminal abortion statutes were unconstitutional on
measurement, free of emotion and of predilection. We seek their face, and an injunction restraining the defendant from
earnestly to do this, and, because we do, we have inquired into, and enforcing the statutes.
in this opinion place some emphasis upon, medical and medical-
legal history and what that history reveals about man's attitudes Roe alleged that she was unmarried and pregnant; that she wished
toward the abortion procedure over the centuries. We bear in mind, to terminate her pregnancy by an abortion "performed by a
too, Mr. Justice Holmes' admonition in his now-vindicated dissent in competent, licensed physician, under safe, clinical conditions"; that
Lochner v. New York, 198 U.S. 45, 76 (1905): she was unable to get a "legal" abortion in Texas because her life did
not appear to be threatened by the continuation of her pregnancy;
"[The Constitution] is made for people of fundamentally differing and that she could not afford to travel to another jurisdiction in
views, and the accident of our finding certain opinions natural and order to secure a legal abortion under safe conditions. She claimed
familiar or novel and even shocking ought not to conclude our that the Texas statutes were unconstitutionally vague and that they
judgment upon the question whether statutes embodying them abridged her right of personal privacy, protected by the First,
conflict with the Constitution of the United States." Fourth, Fifth, Ninth, and Fourteenth Amendments. By an
amendment to her complaint Roe purported to sue "on behalf of
I herself and all other women" similarly situated.
The Texas statutes that concern us here are Arts. 1191-1194 and James Hubert Hallford, a licensed physician, sought and was granted
1196 of the State's Penal Code. 1 These make it a crime to "procure leave to intervene in Roe's action. In his complaint he alleged that he
an abortion," as therein defined, or to attempt one, except with had been arrested previously for violations of the Texas abortion
respect to "an abortion procured or attempted by medical advice for statutes and that two such prosecutions were pending against him.
the purpose of saving the life of the mother." Similar statutes are in
He described conditions of patients who came to him seeking
existence in a majority of the States. 2 abortions, and he claimed that for many cases he, as a physician,
was unable to determine whether they fell within or outside the
Texas first enacted a criminal abortion statute in 1854. Texas Laws exception recognized by Article 1196. He alleged that, as a
1854, c. 49, § 1, set forth in 3 H. Gammel, Laws of Texas 1502 consequence, the statutes were vague and uncertain, in violation of
(1898). This was soon modified into language that has remained
the Fourteenth Amendment, and that they violated his own and his
substantially unchanged to the present time. See Texas Penal Code patients' rights to privacy in the doctor-patient relationship and his
of 1857, c. 7, Arts. 531-536; G. Paschal, Laws of Texas, Arts. 2192- own right to practice medicine, rights he claimed were guaranteed
2197 (1866); Texas Rev. Stat., c. 8, Arts. 536-541 (1879); Texas Rev. by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
Crim. Stat., Arts. 1071-1076 (1911). The final article in each of these
compilations provided the same exception, as does the present John and Mary Doe, 5 a married couple, filed a companion complaint
Article 1196, for an abortion by "medical advice for the purpose of to that of Roe. They also named the District Attorney as defendant,
saving the life of the mother." 3 claimed like constitutional deprivations, and sought declaratory and
II injunctive relief. The Does alleged that they were a childless couple;
that Mrs. Doe was suffering from a "neural-chemical" disorder; that
Jane Roe, 4 a single woman who was residing in Dallas County,
her physician had "advised her to avoid pregnancy until such time
Texas, instituted this federal action in March 1970 against the as her condition has materially improved" (although a pregnancy at
District Attorney of the county. She sought a declaratory judgment
the present time would not present "a serious risk" to her life); that, States Court of Appeals for the Fifth Circuit. That court ordered the
pursuant to medical advice, she had discontinued use of birth appeals held in abeyance pending decision here. We postponed
control pills; and that if she should become pregnant, she would decision on jurisdiction to the hearing on the merits. 402 U.S. 941
want to terminate the pregnancy by an abortion performed by a (1971).
competent, licensed physician under safe, clinical conditions. By an
amendment to their complaint, the Does purported to sue "on behalf III
of themselves and all couples similarly situated." It might have been preferable if the defendant, pursuant to our Rule
20, had presented to us a petition for certiorari before judgment in
The two actions were consolidated and heard together by a duly the Court of Appeals with respect to the granting of the plaintiffs'
convened three-judge district court. The suits thus presented the prayer for declaratory relief. Our decisions in Mitchell v. Donovan,
situations of the pregnant single woman, the childless couple, with 398 U.S. 427 (1970), and Gunn v. University Committee, 399 U.S.
the wife not pregnant, and the licensed practicing physician, all 383 (1970), are to the effect that § 1253 does not authorize an
joining in the attack on the Texas criminal abortion statutes. Upon appeal to this Court from the grant or denial of declaratory relief
the filing of affidavits, motions were made for dismissal and for alone. We conclude, nevertheless, that those decisions do not
summary judgment. The court held that Roe and members of her foreclose our review of both the injunctive and the declaratory
class, and Dr. Hallford, had standing to sue and presented justiciable aspects of a case of this kind when it is properly here, as this one is,
controversies, but that the Does had failed to allege facts sufficient on appeal under § 1253 from specific denial of injunctive relief, and
to state a present controversy and did not have standing. It the arguments as to both aspects are necessarily identical. See
concluded that, with respect to the requests for a declaratory Carter v. Jury Comm'n, 396 U.S. 320 (1970); Florida Lime Growers v.
judgment, abstention was not warranted. On the merits, the District Jacobsen, 362 U.S. 73, 80-81 (1960). It would be destructive of time
Court held that the "fundamental right of single women and married and energy for all concerned were we to rule otherwise. Cf. Doe v.
persons to choose whether to have children is protected by the Bolton, post, p. 179.
Ninth Amendment, through the Fourteenth Amendment," and that
the Texas criminal abortion statutes were void on their face because IV
they were both unconstitutionally vague and constituted an We are next confronted with issues of justiciability, standing, and
overbroad infringement of the plaintiffs' Ninth Amendment rights.
abstention. Have Roe and the Does established that "personal stake
The court then held that abstention was warranted with respect to
in the outcome of the controversy," Baker v. Carr, 369 U.S. 186, 204
the requests for an injunction. It therefore dismissed the Does' (1962), that insures that "the dispute sought to be adjudicated will
complaint, declared the abortion statutes void, and dismissed the
be presented in an adversary context and in a form historically
application for injunctive relief. 314 F.Supp. 1217, 1225 (ND Tex. viewed as capable of judicial resolution," Flast v. Cohen, 392 U.S. 83,
1970).
101 (1968), and Sierra Club v. Morton, 405 U.S. 727, 732 (1972)?
The plaintiffs Roe and Doe and the intervenor Hallford, pursuant to And what effect did the pendency of criminal abortion charges
28 U. S. C. § 1253, have appealed to this Court from that part of the against Dr. Hallford in state court have upon the propriety of the
District Court's judgment denying the injunction. The defendant federal court's granting relief to him as a plaintiff-intervenor? A.
District Attorney has purported to cross-appeal, pursuant to the Jane Roe. Despite the use of the pseudonym, no suggestion is made
same statute, from the court's grant of declaratory relief to Roe and that Roe is a fictitious person. For purposes of her case, we accept as
Hallford. Both sides also have taken protective appeals to the United true, and as established, her existence; her pregnant state, as of the
inception of her suit in March 1970 and as late as May 21 of that always be with us. Pregnancy provides a classic justification for a
year when she filed an alias affidavit with the District Court; and her conclusion of nonmootness. It truly could be "capable of repetition,
inability to obtain a legal abortion in Texas. yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U.S.
498, 515 (1911). See Moore v. Ogilvie, 394 U.S. 814, 816 (1969);
Viewing Roe's case as of the time of its filing and thereafter until as
Carroll v. Princess Anne, 393 U.S. 175, 178-179 (1968); United
late as May, there can be little dispute that it then presented a case States v. W. T. Grant Co., 345 U.S. 629, 632-633 (1953).
or controversy and that, wholly apart from the class aspects, she, as
a pregnant single woman thwarted by the Texas criminal abortion We, therefore, agree with the District Court that Jane Roe had
laws, had standing to challenge those statutes. Abele v. Markle, 452 standing to undertake this litigation, that she presented a justiciable
F.2d 1121, 1125 (CA2 1971); Crossen v. Breckenridge, 446 F.2d 833, controversy, and that the termination of her 1970 pregnancy has
838-839 (CA6 1971); Poe v. Menghini, 339 F.Supp. 986, 990-991 not rendered her case moot.
(Kan. 1972). See Truax v. Raich, 239 U.S. 33 (1915). Indeed, we do
not read the appellee's brief as really asserting anything to the B. Dr. Hallford. The doctor's position is different. He entered Roe's
contrary. The "logical nexus between the status asserted and the litigation as a plaintiff-intervenor, alleging in his complaint that he:
claim sought to be adjudicated," Flast v. Cohen, 392 U.S., at 102, and
the necessary degree of contentiousness, Golden v. Zwickler, 394 "In the past has been arrested for violating the Texas Abortion Laws
U.S. 103 (1969), are both present. and at the present time stands charged by indictment with violating
said laws in the Criminal District Court of Dallas County, Texas to-
The appellee notes, however, that the record does not disclose that wit: (1) The State of Texas vs. James H. Hallford, No. C-69-5307-IH,
Roe was pregnant at the time of the District Court hearing on May and (2) The State of Texas vs. James H. Hallford, No. C-69-2524-H. In
22, 1970, 6 or on the following June 17 when the court's opinion both cases the defendant is charged with abortion . . . ."
and judgment were filed. And he suggests that Roe's case must now
be moot because she and all other members of her class are no In his application for leave to intervene, the doctor made like
representations as to the abortion charges pending in the state
longer subject to any 1970 pregnancy.
court. These representations were also repeated in the affidavit he
The usual rule in federal cases is that an actual controversy must executed and filed in support of his motion for summary judgment.
exist at stages of appellate or certiorari review, and not simply at
the date the action is initiated. United States v. Munsingwear, Inc., Dr. Hallford is, therefore, in the position of seeking, in a federal
340 U.S. 36 (1950); Golden v. Zwickler, supra; SEC v. Medical court, declaratory and injunctive relief with respect to the same
Committee for Human Rights, 404 U.S. 403 (1972). statutes under which he stands charged in criminal prosecutions
simultaneously pending in state court. Although he stated that he
But when, as here, pregnancy is a significant fact in the litigation, has been arrested in the past for violating the State's abortion laws,
the normal 266-day human gestation period is so short that the he makes no allegation of any substantial and immediate threat to
pregnancy will come to term before the usual appellate process is any federally protected right that cannot be asserted in his defense
complete. If that termination makes a case moot, pregnancy against the state prosecutions. Neither is there any allegation of
litigation seldom will survive much beyond the trial stage, and harassment or bad-faith prosecution. In order to escape the rule
appellate review will be effectively denied. Our law should not be articulated in the cases cited in the next paragraph of this opinion
that rigid. Pregnancy often comes more than once to the same that, absent harassment and bad faith, a defendant in a pending
woman, and in the general population, if man is to survive, it will state criminal case cannot affirmatively challenge in federal court
the statutes under which the State is prosecuting him, Dr. Hallford legally in Texas and, consequently, the prospect of obtaining an
seeks to distinguish his status as a present state defendant from his illegal abortion there or of going outside Texas to some place where
status as a "potential future defendant" and to assert only the latter the procedure could be obtained legally and competently.
for standing purposes here.
We thus have as plaintiffs a married couple who have, as their
We see no merit in that distinction. Our decision in Samuels v. asserted immediate and present injury, only an alleged "detrimental
Mackell, 401 U.S. 66 (1971), compels the conclusion that the District effect upon [their] marital happiness" because they are forced to
Court erred when it granted declaratory relief to Dr. Hallford "the choice of refraining from normal sexual relations or of
instead of refraining from so doing. The court, of course, was correct endangering Mary Doe's health through a possible pregnancy."
in refusing to grant injunctive relief to the doctor. The reasons Their claim is that sometime in the future Mrs. Doe might become
supportive of that action, however, are those expressed in Samuels pregnant because of possible failure of contraceptive measures, and
v. Mackell, supra, and in Younger v. Harris, 401 U.S. 37 (1971); Boyle at that time in the future she might want an abortion that might
v. Landry, 401 U.S. 77 (1971); Perez v. Ledesma, 401 U.S. 82 (1971); then be illegal under the Texas statutes.
and Byrne v. Karalexis, 401 U.S. 216 (1971). See also Dombrowski v.
Pfister, 380 U.S. 479 (1965). We note, in passing, that Younger and This very phrasing of the Does' position reveals its speculative
its companion cases were decided after the three-judge District character. Their alleged injury rests on possible future
Court decision in this case. contraceptive failure, possible future pregnancy, possible future
unpreparedness for parenthood, and possible future impairment of
Dr. Hallford's complaint in intervention, therefore, is to be health. Any one or more of these several possibilities may not take
dismissed. 7 He is remitted to his defenses in the state criminal place and all may not combine. In the Does' estimation, these
proceedings against him. We reverse the judgment of the District possibilities might have some real or imagined impact upon their
Court insofar as it granted Dr. Hallford relief and failed to dismiss marital happiness. But we are not prepared to say that the bare
his complaint in intervention. allegation of so indirect an injury is sufficient to present an actual
case or controversy. Younger v. Harris, 401 U.S., at 41-42; Golden v.
Zwickler, 394 U.S., at 109-110; Abele v. Markle, 452 F.2d, at 1124-
1125; Crossen v. Breckenridge, 446 F.2d, at 839. The Does' claim
C. The Does. In view of our ruling as to Roe's standing in her case, falls far short of those resolved otherwise in the cases that the Does
the issue of the Does' standing in their case has little significance. urge upon us, namely, Investment Co. Institute v. Camp, 401 U.S. 617
The claims they assert are essentially the same as those of Roe, and
(1971); Data Processing Service v. Camp, 397 U.S. 150 (1970); and
they attack the same statutes. Nevertheless, we briefly note the Epperson v. Arkansas, 393 U.S. 97 (1968). See also Truax v. Raich,
Does' posture. 239 U.S. 33 (1915).
Their pleadings present them as a childless married couple, the The Does therefore are not appropriate plaintiffs in this litigation.
woman not being pregnant, who have no desire to have children at Their complaint was properly dismissed by the District Court, and
this time because of their having received medical advice that Mrs. we affirm that dismissal.
Doe should avoid pregnancy, and for "other highly personal
reasons." But they "fear . . . they may face the prospect of becoming V
parents." And if pregnancy ensues, they "would want to terminate"
it by an abortion. They assert an inability to obtain an abortion
The principal thrust of appellant's attack on the Texas statutes is was prosecuted in some places, it seems to have been based on a
that they improperly invade a right, said to be possessed by the concept of a violation of the father's right to his offspring. Ancient
pregnant woman, to choose to terminate her pregnancy. Appellant religion did not bar abortion. 12
would discover this right in the concept of personal "liberty"
embodied in the Fourteenth Amendment's Due Process Clause; or in 2. The Hippocratic Oath. What then of the famous Oath that has
personal, marital, familial, and sexual privacy said to be protected stood so long as the ethical guide of the medical profession and that
by the Bill of Rights or its penumbras, see Griswold v. Connecticut, bears the name of the great Greek (460(?)-377(?) B. C.), who has
381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); id., at been described as the Father of Medicine, the "wisest and the
460 (WHITE, J., concurring in result); or among those rights greatest practitioner of his art," and the "most important and most
reserved to the people by the Ninth Amendment, Griswold v. complete medical personality of antiquity," who dominated the
Connecticut, 381 U.S., at 486 (Goldberg, J., concurring). Before medical schools of his time, and who typified the sum of the medical
addressing this claim, we feel it desirable briefly to survey, in knowledge of the past? 13 The Oath varies somewhat according to
several aspects, the history of abortion, for such insight as that the particular translation, but in any translation the content is clear:
history may afford us, and then to examine the state purposes and "I will give no deadly medicine to anyone if asked, nor suggest any
interests behind the criminal abortion laws. such counsel; and in like manner I will not give to a woman a
pessary to produce abortion," 14 or "I will neither give a deadly
VI drug to anybody if asked for it, nor will I make a suggestion to this
effect. Similarly, I will not give to a woman an abortive remedy." 15
It perhaps is not generally appreciated that the restrictive criminal
abortion laws in effect in a majority of States today are of relatively Although the Oath is not mentioned in any of the principal briefs in
recent vintage. Those laws, generally proscribing abortion or its this case or in Doe v. Bolton, post, p. 179, it represents the apex of
attempt at any time during pregnancy except when necessary to the development of strict ethical concepts in medicine, and its
preserve the pregnant woman's life, are not of ancient or even of influence endures to this day. Why did not the authority of
common-law origin. Instead, they derive from statutory changes Hippocrates dissuade abortion practice in his time and that of
effected, for the most part, in the latter half of the 19th century. Rome? The late Dr. Edelstein provides us with a theory: 16 The Oath
was not uncontested even in Hippocrates' day; only the
1. Ancient attitudes. These are not capable of precise determination. Pythagorean school of philosophers frowned upon the related act of
We are told that at the time of the Persian Empire abortifacients suicide. Most Greek thinkers, on the other hand, commended
were known and that criminal abortions were severely abortion, at least prior to viability. See Plato, Republic, V, 461;
punished. 8 We are also told, however, that abortion was practiced Aristotle, Politics, VII, 1335b 25. For the Pythagoreans, however, it
in Greek times as well as in the Roman Era, 9 and that "it was was a matter of dogma. For them the embryo was animate from the
resorted to without scruple." 10 moment of conception, and abortion meant destruction of a living
The Ephesian, Soranos, often described as the greatest of the being. The abortion clause of the Oath, therefore, "echoes
ancient gynecologists, appears to have been generally opposed to Pythagorean doctrines," and "in no other stratum of Greek opinion
Rome's prevailing free-abortion practices. He found it necessary to were such views held or proposed in the same spirit of
think first of the life of the mother, and he resorted to abortion uncompromising austerity." 17
when, upon this standard, he felt the procedure advisable. 11 Greek
and Roman law afforded little protection to the unborn. If abortion
Dr. Edelstein then concludes that the Oath originated in a group uncertainty about the precise time when animation occurred, to the
representing only a small segment of Greek opinion and that it lack of any empirical basis for the 40-80-day view, and perhaps to
certainly was not accepted by all ancient physicians. He points out Aquinas' definition of movement as one of the two first principles of
that medical writings down to Galen (A. D. 130-200) "give evidence life, Bracton focused upon quickening as the critical point. The
of the violation of almost every one of its injunctions." 18 But with significance of quickening was echoed by later common-law
the end of antiquity a decided change took place. Resistance against scholars and found its way into the received common law in this
suicide and against abortion became common. The Oath came to be country.
popular. The emerging teachings of Christianity were in agreement
with the Pythagorean ethic. The Oath "became the nucleus of all Whether abortion of a quick fetus was a felony at common law, or
medical ethics" and "was applauded as the embodiment of truth." even a lesser crime, is still disputed. Bracton, writing early in the
Thus, suggests Dr. Edelstein, it is "a Pythagorean manifesto and not 13th century, thought it homicide. 23 But the later and predominant
the expression of an absolute standard of medical conduct." 19 view, following the great common-law scholars, has been that it
was, at most, a lesser offense. In a frequently cited passage, Coke
This, it seems to us, is a satisfactory and acceptable explanation of took the position that abortion of a woman "quick with child" is "a
the Hippocratic Oath's apparent rigidity. It enables us to great misprision, and no murder." 24 Blackstone followed, saying
understand, in historical context, a long-accepted and revered that while abortion after quickening had once been considered
statement of medical ethics. manslaughter (though not murder), "modern law" took a less severe
3. The common law. It is undisputed that at common law, abortion view. 25 A recent review of the common-law precedents argues,
performed before "quickening" -- the first recognizable movement however, that those precedents contradict Coke and that even post-
of the fetus in utero, appearing usually from the 16th to the 18th quickening abortion was never established as a common-law
week of pregnancy 20 -- was not an indictable offense. 21 The crime. 26 This is of some importance because while most American
absence of a common-law crime for pre-quickening abortion courts ruled, in holding or dictum, that abortion of an unquickened
appears to have developed from a confluence of earlier fetus was not criminal under their received common law, 27 others
philosophical, theological, and civil and canon law concepts of when followed Coke in stating that abortion of a quick fetus was a
life begins. These disciplines variously approached the question in "misprision," a term they translated to mean "misdemeanor."
terms of the point at which the embryo or fetus became "formed" or 28 That their reliance on Coke on this aspect of the law was
recognizably human, or in terms of when a "person" came into uncritical and, apparently in all the reported cases, dictum (due
being, that is, infused with a "soul" or "animated." A loose consensus probably to the paucity of common-law prosecutions for post-
evolved in early English law that these events occurred at some quickening abortion), makes it now appear doubtful that abortion
point between conception and live birth. 22 This was "mediate was ever firmly established as a common-law crime even with
animation." Although Christian theology and the canon law came to respect to the destruction of a quick fetus.
fix the point of animation at 40 days for a male and 80 days for a
female, a view that persisted until the 19th century, there was 4. The English statutory law. England's first criminal abortion
otherwise little agreement about the precise time of formation or statute, Lord Ellenborough's Act, 43 Geo. 3, c. 58, came in 1803. It
animation. There was agreement, however, that prior to this point made abortion of a quick fetus, § 1, a capital crime, but in § 2 it
the fetus was to be regarded as part of the mother, and its provided lesser penalties for the felony of abortion before
destruction, therefore, was not homicide. Due to continued quickening, and thus preserved the "quickening" distinction. This
contrast was continued in the general revision of 1828, 9 Geo. 4, c. children of her family, greater than if the pregnancy were
31, § 13. It disappeared, however, together with the death penalty, terminated," or (b) "that there is a substantial risk that if the child
in 1837, 7 Will. 4 & 1 Vict., c. 85, § 6, and did not reappear in the were born it would suffer from such physical or mental
Offenses Against the Person Act of 1861, 24 & 25 Vict., c. 100, § 59, abnormalities as to be seriously handicapped." The Act also
that formed the core of English anti-abortion law until the provides that, in making this determination, "account may be taken
liberalizing reforms of 1967. In 1929, the Infant Life (Preservation) of the pregnant woman's actual or reasonably foreseeable
Act, 19 & 20 Geo. 5, c. 34, came into being. Its emphasis was upon environment." It also permits a physician, without the concurrence
the destruction of "the life of a child capable of being born alive." It of others, to terminate a pregnancy where he is of the good-faith
made a willful act performed with the necessary intent a felony. It opinion that the abortion "is immediately necessary to save the life
contained a proviso that one was not to be found guilty of the or to prevent grave permanent injury to the physical or mental
offense "unless it is proved that the act which caused the death of health of the pregnant woman."
the child was not done in good faith for the purpose only of
preserving the life of the mother." 5. The American law. In this country, the law in effect in all but a few
States until mid-19th century was the pre-existing English common
A seemingly notable development in the English law was the case of law. Connecticut, the first State to enact abortion legislation,
Rex v. Bourne, [1939] 1 K. B. 687. This case apparently answered in adopted in 1821 that part of Lord Ellenborough's Act that related to
the affirmative the question whether an abortion necessary to a woman "quick with child." 29 The death penalty was not imposed.
preserve the life of the pregnant woman was excepted from the Abortion before quickening was made a crime in that State only in
criminal penalties of the 1861 Act. In his instructions to the jury, 1860. 30 In 1828, New York enacted legislation 31 that, in two
Judge Macnaghten referred to the 1929 Act, and observed that that respects, was to serve as a model for early anti-abortion statutes.
Act related to "the case where a child is killed by a wilful act at the First, while barring destruction of an unquickened fetus as well as a
time when it is being delivered in the ordinary course of nature." Id., quick fetus, it made the former only a misdemeanor, but the latter
at 691. He concluded that the 1861 Act's use of the word second-degree manslaughter. Second, it incorporated a concept of
"unlawfully," imported the same meaning expressed by the specific therapeutic abortion by providing that an abortion was excused if it
proviso in the 1929 Act, even though there was no mention of "shall have been necessary to preserve the life of such mother, or
preserving the mother's life in the 1861 Act. He then construed the shall have been advised by two physicians to be necessary for such
phrase "preserving the life of the mother" broadly, that is, "in a purpose." By 1840, when Texas had received the common law, 32
reasonable sense," to include a serious and permanent threat to the
mother's health, and instructed the jury to acquit Dr. Bourne if it only eight American States had statutes dealing with abortion. 33 It
was not until after the War Between the States that legislation
found he had acted in a good-faith belief that the abortion was
necessary for this purpose. Id., at 693-694. The jury did acquit. began generally to replace the common law. Most of these initial
statutes dealt severely with abortion after quickening but were
Recently, Parliament enacted a new abortion law. This is the lenient with it before quickening. Most punished attempts equally
Abortion Act of 1967, 15 & 16 Eliz. 2, c. 87. The Act permits a with completed abortions. While many statutes included the
licensed physician to perform an abortion where two other licensed exception for an abortion thought by one or more physicians to be
physicians agree (a) "that the continuance of the pregnancy would necessary to save the mother's life, that provision soon disappeared
involve risk to the life of the pregnant woman, or of injury to the and the typical law required that the procedure actually be
physical or mental health of the pregnant woman or any existing necessary for that purpose.
 (1859), to the Twelfth Annual Meeting. That report observed that
Gradually, in the middle and late 19th century the quickening the Committee had been appointed to investigate criminal abortion
distinction disappeared from the statutory law of most States and "with a view to its general suppression." It deplored abortion and its
the degree of the offense and the penalties were increased. By the frequency and it listed three causes of "this general
end of the 1950's, a large majority of the jurisdictions banned demoralization":
abortion, however and whenever performed, unless done to save or
preserve the life of the mother. 34 The exceptions, Alabama and the "The first of these causes is a wide-spread popular ignorance of the
District of Columbia, permitted abortion to preserve the mother's true character of the crime -- a belief, even among mothers
health. 35 Three States permitted abortions that were not themselves, that the foetus is not alive till after the period of
"unlawfully" performed or that were not "without lawful quickening.
justification," leaving interpretation of those standards to the
courts. 36 "The second of the agents alluded to is the fact that the profession
themselves are frequently supposed careless of foetal life . . . .
In the past several years, however, a trend toward liberalization of
abortion statutes has resulted in adoption, by about one-third of the "The third reason of the frightful extent of this crime is found in the
States, of less stringent laws, most of them patterned after the ALI grave defects of our laws, both common and statute, as regards the
Model Penal Code, § 230.3, 37 set forth as Appendix B to the opinion independent and actual existence of the child before birth, as a
in Doe v. Bolton, post, p. 205. living being. These errors, which are sufficient in most instances to
prevent conviction, are based, and only based, upon mistaken and
It is thus apparent that at common law, at the time of the adoption exploded medical dogmas. With strange inconsistency, the law fully
of our Constitution, and throughout the major portion of the 19th acknowledges the foetus in utero and its inherent rights, for civil
century, abortion was viewed with less disfavor than under most purposes; while personally and as criminally affected, it fails to
American statutes currently in effect. Phrasing it another way, a recognize it, and to its life as yet denies all protection." Id., at 75-76.
woman enjoyed a substantially broader right to terminate a The Committee then offered, and the Association adopted,
pregnancy than she does in most States today. At least with respect resolutions protesting "against such unwarrantable destruction of
to the early stage of pregnancy, and very possibly without such a human life," calling upon state legislatures to revise their abortion
limitation, the opportunity to make this choice was present in this laws, and requesting the cooperation of state medical societies "in
country well into the 19th century. Even later, the law continued for pressing the subject." Id., at 28, 78.
some time to treat less punitively an abortion procured in early
pregnancy. In 1871 a long and vivid report was submitted by the Committee on
Criminal Abortion. It ended with the observation, "We had to deal
6. The position of the American Medical Association. The anti- with human life. In a matter of less importance we could entertain
abortion mood prevalent in this country in the late 19th century no compromise. An honest judge on the bench would call things by
was shared by the medical profession. Indeed, the attitude of the their proper names. We could do no less." 22 Trans. of the Am. Med.
profession may have played a significant role in the enactment of Assn. 258 (1871). It proffered resolutions, adopted by the
stringent criminal abortion legislation during that period. Association, id., at 38-39, recommending, among other things, that it
"be unlawful and unprofessional for any physician to induce
An AMA Committee on Criminal Abortion was appointed in May abortion or premature labor, without the concurrent opinion of at
1857. It presented its report, 12 Trans. of the Am. Med. Assn. 73-78
least one respectable consulting physician, and then always with a patient," "sound clinical judgment," and "informed patient consent,"
view to the safety of the child -- if that be possible," and calling "the in contrast to "mere acquiescence to the patient's demand." The
attention of the clergy of all denominations to the perverted views resolutions asserted that abortion is a medical procedure that
of morality entertained by a large class of females -- aye, and men should be performed by a licensed physician in an accredited
also, on this important question." hospital only after consultation with two other physicians and in
conformity with state law, and that no party to the procedure
Except for periodic condemnation of the criminal abortionist, no should be required to violate personally held moral
further formal AMA action took place until 1967. In that year, the principles. 38 Proceedings of the AMA House of Delegates 220 (June
Committee on Human Reproduction urged the adoption of a stated 1970). The AMA Judicial Council rendered a complementary
policy of opposition to induced abortion, except when there is
opinion. 39
"documented medical evidence" of a threat to the health or life of
the mother, or that the child "may be born with incapacitating 7. The position of the American Public Health Association. In
physical deformity or mental deficiency," or that a pregnancy October 1970, the Executive Board of the APHA adopted Standards
"resulting from legally established statutory or forcible rape or for Abortion Services. These were five in number:
incest may constitute a threat to the mental or physical health of the
patient," two other physicians "chosen because of their recognized "a. Rapid and simple abortion referral must be readily available
professional competence have examined the patient and have through state and local public health departments, medical
concurred in writing, " and the procedure "is performed in a societies, or other nonprofit organizations.
hospital accredited by the Joint Commission on Accreditation of
Hospitals." The providing of medical information by physicians to "b. An important function of counseling should be to simplify and
state legislatures in their consideration of legislation regarding expedite the provision of abortion services; it should not delay the
therapeutic abortion was "to be considered consistent with the obtaining of these services.
principles of ethics of the American Medical Association." This
recommendation was adopted by the House of Delegates. " c. Psychiatric consultation should not be mandatory. As in the case
Proceedings of the AMA House of Delegates 40-51 (June 1967). of other specialized medical services, psychiatric consultation
should be sought for definite indications and not on a routine basis.
"d. A wide range of individuals from appropriately trained,
In 1970, after the introduction of a variety of proposed resolutions, sympathetic volunteers to highly skilled physicians may qualify as
and of a report from its Board of Trustees, a reference committee abortion counselors.
noted "polarization of the medical profession on this controversial
issue"; division among those who had testified; a difference of "e. Contraception and/or sterilization should be discussed with each
opinion among AMA councils and committees; "the remarkable shift abortion patient." Recommended Standards for Abortion Services,
in testimony" in six months, felt to be influenced "by the rapid 61 Am. J. Pub. Health 396 (1971).
changes in state laws and by the judicial decisions which tend to Among factors pertinent to life and health risks associated with
make abortion more freely available;" and a feeling "that this trend abortion were three that "are recognized as important":
will continue." On June 25, 1970, the House of Delegates adopted
preambles and most of the resolutions proposed by the reference "a. the skill of the physician,
committee. The preambles emphasized "the best interests of the
"b. the environment in which the abortion is performed, and above it appears that no court or commentator has taken the argument
all seriously. 42 The appellants and amici contend, moreover, that this
is not a proper state purpose at all and suggest that, if it were, the
" c. the duration of pregnancy, as determined by uterine size and Texas statutes are overbroad in protecting it since the law fails to
confirmed by menstrual history." Id., at 397.
distinguish between married and unwed mothers.
It was said that "a well-equipped hospital" offers more protection
"to cope with unforeseen difficulties than an office or clinic without
such resources. . . . The factor of gestational age is of overriding A second reason is concerned with abortion as a medical procedure.
importance." Thus, it was recommended that abortions in the When most criminal abortion laws were first enacted, the
second trimester and early abortions in the presence of existing procedure was a hazardous one for the woman. 43 This was
medical complications be performed in hospitals as inpatient particularly true prior to the development of antisepsis. Antiseptic
procedures. For pregnancies in the first trimester, abortion in the techniques, of course, were based on discoveries by Lister, Pasteur,
hospital with or without overnight stay "is probably the safest and others first announced in 1867, but were not generally accepted
practice." An abortion in an extramural facility, however, is an and employed until about the turn of the century. Abortion
acceptable alternative "provided arrangements exist in advance to mortality was high. Even after 1900, and perhaps until as late as the
admit patients promptly if unforeseen complications develop." development of antibiotics in the 1940's, standard modern
Standards for an abortion facility were listed. It was said that at techniques such as dilation and curettage were not nearly so safe as
present abortions should be performed by physicians or osteopaths they are today. Thus, it has been argued that a State's real concern
who are licensed to practice and who have "adequate training." Id., in enacting a criminal abortion law was to protect the pregnant
at 398. woman, that is, to restrain her from submitting to a procedure that
8. The position of the American Bar Association. At its meeting in placed her life in serious jeopardy.
February 1972 the ABA House of Delegates approved, with 17
opposing votes, the Uniform Abortion Act that had been drafted and Modern medical techniques have altered this situation. Appellants
approved the preceding August by the Conference of and various amici refer to medical data indicating that abortion in
Commissioners on Uniform State Laws. 58 A. B. A. J. 380 (1972). We early pregnancy, that is, prior to the end of the first trimester,
set forth the Act in full in the margin. 40 The Conference has although not without its risk, is now relatively safe. Mortality rates
appended an enlightening Prefatory Note. 41 for women undergoing early abortions, where the procedure is
legal, appear to be as low as or lower than the rates for normal
VII childbirth. 44 Consequently, any interest of the State in protecting
the woman from an inherently hazardous procedure, except when it
Three reasons have been advanced to explain historically the would be equally dangerous for her to forgo it, has largely
enactment of criminal abortion laws in the 19th century and to disappeared. Of course, important state interests in the areas of
justify their continued existence. health and medical standards do remain. The State has a legitimate
It has been argued occasionally that these laws were the product of interest in seeing to it that abortion, like any other medical
procedure, is performed under circumstances that insure maximum
a Victorian social concern to discourage illicit sexual conduct. Texas,
however, does not advance this justification in the present case, and safety for the patient. This interest obviously extends at least to the
performing physician and his staff, to the facilities involved, to the
availability of after-care, and to adequate provision for any the embryo and fetus. 48 Proponents of this view point out that in
complication or emergency that might arise. The prevalence of high many States, including Texas, 49
mortality rates at illegal "abortion mills" strengthens, rather than
weakens, the State's interest in regulating the conditions under by statute or judicial interpretation, the pregnant woman herself
could not be prosecuted for self-abortion or for cooperating in an
which abortions are performed. Moreover, the risk to the woman
increases as her pregnancy continues. Thus, the State retains a abortion performed upon her by another. 50 They claim that
definite interest in protecting the woman's own health and safety adoption of the "quickening" distinction through received common
when an abortion is proposed at a late stage of pregnancy. law and state statutes tacitly recognizes the greater health hazards
inherent in late abortion and impliedly repudiates the theory that
life begins at conception.
The third reason is the State's interest -- some phrase it in terms of
duty -- in protecting prenatal life. Some of the argument for this It is with these interests, and the weight to be attached to them, that
justification rests on the theory that a new human life is present this case is concerned.
from the moment of conception. 45 The State's interest and general VIII
obligation to protect life then extends, it is argued, to prenatal life.
Only when the life of the pregnant mother herself is at stake, The Constitution does not explicitly mention any right of privacy. In
balanced against the life she carries within her, should the interest a line of decisions, however, going back perhaps as far as Union
of the embryo or fetus not prevail. Logically, of course, a legitimate Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has
state interest in this area need not stand or fall on acceptance of the recognized that a right of personal privacy, or a guarantee of certain
belief that life begins at conception or at some other point prior to areas or zones of privacy, does exist under the Constitution. In
live birth. In assessing the State's interest, recognition may be given varying contexts, the Court or individual Justices have, indeed,
to the less rigid claim that as long as at least potential life is found at least the roots of that right in the First Amendment, Stanley
involved, the State may assert interests beyond the protection of the v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth
pregnant woman alone. Amendments, Terry v. Ohio, 392 U.S. 1, 8-9 (1968), Katz v. United
States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616
Parties challenging state abortion laws have sharply disputed in (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928)
some courts the contention that a purpose of these laws, when (Brandeis, J., dissenting); in the penumbras of the Bill of Rights,
enacted, was to protect prenatal life. 46 Pointing to the absence of Griswold v. Connecticut, 381 U.S., at 484-485; in the Ninth
legislative history to support the contention, they claim that most Amendment, id., at 486 (Goldberg, J., concurring); or in the concept
state laws were designed solely to protect the woman. Because of liberty guaranteed by the first section of the Fourteenth
medical advances have lessened this concern, at least with respect Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
to abortion in early pregnancy, they argue that with respect to such These decisions make it clear that only personal rights that can be
abortions the laws can no longer be justified by any state interest. deemed "fundamental" or "implicit in the concept of ordered
There is some scholarly support for this view of original liberty," Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included
purpose. 47 The few state courts called upon to interpret their laws in this guarantee of personal privacy. They also make it clear that
in the late 19th and early 20th centuries did focus on the State's the right has some extension to activities relating to marriage,
interest in protecting the woman's health rather than in preserving Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v.
Oklahoma, 316 U.S. 535, 541-542 (1942); contraception, Eisenstadt
v. Baird, 405 U.S., at 453-454; id., at 460, 463-465 (WHITE, J., compelling to sustain regulation of the factors that govern the
concurring in result); family relationships, Prince v. Massachusetts, abortion decision. The privacy right involved, therefore, cannot be
321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. said to be absolute. In fact, it is not clear to us that the claim
Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, asserted by some amici that one has an unlimited right to do with
supra. one's body as one pleases bears a close relationship to the right of
privacy previously articulated in the Court's decisions. The Court
This right of privacy, whether it be founded in the Fourteenth has refused to recognize an unlimited right of this kind in the past.
Amendment's concept of personal liberty and restrictions upon Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v.
state action, as we feel it is, or, as the District Court determined, in Bell, 274 U.S. 200 (1927) (sterilization).
the Ninth Amendment's reservation of rights to the people, is broad
enough to encompass a woman's decision whether or not to We, therefore, conclude that the right of personal privacy includes
terminate her pregnancy. The detriment that the State would the abortion decision, but that this right is not unqualified and must
impose upon the pregnant woman by denying this choice altogether be considered against important state interests in regulation.
is apparent. Specific and direct harm medically diagnosable even in
early pregnancy may be involved. Maternity, or additional offspring, We note that those federal and state courts that have recently
may force upon the woman a distressful life and future. considered abortion law challenges have reached the same
Psychological harm may be imminent. Mental and physical health conclusion. A majority, in addition to the District Court in the
may be taxed by child care. There is also the distress, for all present case, have held state laws unconstitutional, at least in part,
concerned, associated with the unwanted child, and there is the because of vagueness or because of overbreadth and abridgment of
problem of bringing a child into a family already unable, rights. Abele v. Markle, 342 F.Supp. 800 (Conn. 1972), appeal
psychologically and otherwise, to care for it. In other cases, as in this docketed, No. 72-56; Abele v. Markle, 351 F.Supp. 224 (Conn. 1972),
one, the additional difficulties and continuing stigma of unwed appeal docketed, No. 72-730; Doe v. Bolton, 319 F.Supp. 1048 (ND
motherhood may be involved. All these are factors the woman and Ga. 1970), appeal decided today, post, p. 179; Doe v. Scott, 321
her responsible physician necessarily will consider in consultation. F.Supp. 1385 (ND Ill. 1971), appeal docketed, No. 70-105; Poe v.
Menghini, 339 F.Supp. 986 (Kan. 1972); YWCA v. Kugler, 342
On the basis of elements such as these, appellant and some amici F.Supp. 1048 (NJ 1972); Babbitz v. McCann, 310 F.Supp. 293 (ED
argue that the woman's right is absolute and that she is entitled to Wis. 1970), appeal dismissed, 400 U.S. 1 (1970); People v. Belous,
terminate her pregnancy at whatever time, in whatever way, and for 71 Cal. 2d 954, 458 P. 2d 194 (1969), cert. denied, 397 U.S. 915
whatever reason she alone chooses. With this we do not agree. (1970); State v. Barquet, 262 So. 2d 431 (Fla. 1972).
Appellant's arguments that Texas either has no valid interest at all
in regulating the abortion decision, or no interest strong enough to Others have sustained state statutes. Crossen v. Attorney General,
support any limitation upon the woman's sole determination, are 344 F.Supp. 587 (ED Ky. 1972), appeal docketed, No. 72-256; Rosen
unpersuasive. The Court's decisions recognizing a right of privacy v. Louisiana State Board of Medical Examiners, 318 F.Supp. 1217
(ED La. 1970), appeal docketed, No. 70-42; Corkey v. Edwards, 322
also acknowledge that some state regulation in areas protected by
that right is appropriate. As noted above, a State may properly F.Supp. 1248 (WDNC 1971), appeal docketed, No. 71-92; Steinberg
assert important interests in safeguarding health, in maintaining v. Brown, 321 F.Supp. 741 (ND Ohio 1970); Doe v. Rampton (Utah
medical standards, and in protecting potential life. At some point in 1971), appeal docketed, No. 71-5666; Cheaney v. State, Ind. , 285 N.
pregnancy, these respective interests become sufficiently E. 2d 265 (1972); Spears v. State, 257 So. 2d 876 (Miss. 1972); State
v. Munson, 86 S. D. 663, 201 N. W. 2d 123 (1972), appeal docketed, statutes outstripped these justifications and swept "far beyond any
No. 72-631. areas of compelling state interest." 314 F.Supp., at 1222-1223.
Appellant and appellee both contest that holding. Appellant, as has
Although the results are divided, most of these courts have agreed been indicated, claims an absolute right that bars any state
that the right of privacy, however based, is broad enough to cover
imposition of criminal penalties in the area. Appellee argues that the
the abortion decision; that the right, nonetheless, is not absolute State's determination to recognize and protect prenatal life from
and is subject to some limitations; and that at some point the state and after conception constitutes a compelling state interest. As
interests as to protection of health, medical standards, and prenatal noted above, we do not agree fully with either formulation.
life, become dominant. We agree with this approach.
A. The appellee and certain amici argue that the fetus is a "person"
Where certain "fundamental rights" are involved, the Court has held within the language and meaning of the Fourteenth Amendment. In
that regulation limiting these rights may be justified only by a support of this, they outline at length and in detail the well-known
"compelling state interest," Kramer v. Union Free School District, facts of fetal development. If this suggestion of personhood is
395 U.S. 621, 627 (1969); Shapiro v. Thompson, 394 U.S. 618, 634 established, the appellant's case, of course, collapses, for the fetus'
(1969), Sherbert v. Verner, 374 U.S. 398, 406 (1963), and that right to life would then be guaranteed specifically by the
legislative enactments must be narrowly drawn to express only the Amendment. The appellant conceded as much on reargument. 51 On
legitimate state interests at stake. Griswold v. Connecticut, 381 U.S., the other hand, the appellee conceded on reargument 52 that no
at 485; Aptheker v. Secretary of State, 378 U.S. 500, 508 (1964); case could be cited that holds that a fetus is a person within the
Cantwell v. Connecticut, 310 U.S. 296, 307-308 (1940); see meaning of the Fourteenth Amendment.
Eisenstadt v. Baird, 405 U.S., at 460, 463-464 (WHITE, J., concurring
in result).
In the recent abortion cases, cited above, courts have recognized The Constitution does not define "person" in so many words.
these principles. Those striking down state laws have generally Section 1 of the Fourteenth Amendment contains three references
scrutinized the State's interests in protecting health and potential to "person." The first, in defining "citizens," speaks of "persons born
life, and have concluded that neither interest justified broad or naturalized in the United States." The word also appears both in
limitations on the reasons for which a physician and his pregnant the Due Process Clause and in the Equal Protection Clause. "Person"
patient might decide that she should have an abortion in the early is used in other places in the Constitution: in the listing of
stages of pregnancy. Courts sustaining state laws have held that the qualifications for Representatives and Senators, Art. I, § 2, cl. 2, and
State's determinations to protect health or prenatal life are § 3, cl. 3; in the Apportionment Clause, Art. I, § 2, cl. 3; 53 in the
dominant and constitutionally justifiable. Migration and Importation provision, Art. I, § 9, cl. 1; in the
IX Emolument Clause, Art. I, § 9, cl. 8; in the Electors provisions, Art. II,
§ 1, cl. 2, and the superseded cl. 3; in the provision outlining
The District Court held that the appellee failed to meet his burden of qualifications for the office of President, Art. II, § 1, cl. 5; in the
demonstrating that the Texas statute's infringement upon Roe's Extradition provisions, Art. IV, § 2, cl. 2, and the superseded Fugitive
rights was necessary to support a compelling state interest, and Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second
that, although the appellee presented "several compelling Amendments, as well as in §§ 2 and 3 of the Fourteenth
justifications for state presence in the area of abortions," the Amendment. But in nearly all these instances, the use of the word is
such that it has application only postnatally. None indicates, with appropriate for a State to decide that at some point in time another
any assurance, that it has any possible pre-natal application. 54 interest, that of health of the mother or that of potential human life,
becomes significantly involved. The woman's privacy is no longer
All this, together with our observation, supra, that throughout the sole and any right of privacy she possesses must be measured
major portion of the 19th century prevailing legal abortion practices accordingly.
were far freer than they are today, persuades us that the word
"person," as used in the Fourteenth Amendment, does not include Texas urges that, apart from the Fourteenth Amendment, life begins
the unborn. 55 This is in accord with the results reached in those at conception and is present throughout pregnancy, and that,
few cases where the issue has been squarely presented. McGarvey v. therefore, the State has a compelling interest in protecting that life
Magee-Womens Hospital, 340 F.Supp. 751 (WD Pa. 1972); Byrn v. from and after conception. We need not resolve the difficult
New York City Health & Hospitals Corp., 31 N. Y. 2d 194, 286 N. E. 2d question of when life begins. When those trained in the respective
887 (1972), appeal docketed, No. 72-434; Abele v. Markle, 351 disciplines of medicine, philosophy, and theology are unable to
F.Supp. 224 (Conn. 1972), appeal docketed, No. 72-730. Cf. Cheaney arrive at any consensus, the judiciary, at this point in the
v. State, Ind., at , 285 N. E. 2d, at 270; Montana v. Rogers, 278 F.2d development of man's knowledge, is not in a position to speculate as
68, 72 (CA7 1960), aff'd sub nom. Montana v. Kennedy, 366 U.S. 308 to the answer.
(1961); Keeler v. Superior Court, 2 Cal. 3d 619, 470 P. 2d 617
(1970); State v. Dickinson, 28 Ohio St. 2d 65, 275 N. E. 2d 599 It should be sufficient to note briefly the wide divergence of
(1971). Indeed, our decision in United States v. Vuitch, 402 U.S. 62 thinking on this most sensitive and difficult question. There has
(1971), inferentially is to the same effect, for we there would not always been strong support for the view that life does not begin
have indulged in statutory interpretation favorable to abortion in until live birth. This was the belief of the Stoics. 56 It appears to be
specified circumstances if the necessary consequence was the the predominant, though not the unanimous, attitude of the Jewish
termination of life entitled to Fourteenth Amendment protection. faith. 57 It may be taken to represent also the position of a large
segment of the Protestant community, insofar as that can be
ascertained; organized groups that have taken a formal position on
the abortion issue have generally regarded abortion as a matter for
This conclusion, however, does not of itself fully answer the the conscience of the individual and her family. 58
contentions raised by Texas, and we pass on to other
considerations. As we have noted, the common law found greater significance in
quickening. Physicians and their scientific colleagues have regarded
B. The pregnant woman cannot be isolated in her privacy. She that event with less interest and have tended to focus either upon
carries an embryo and, later, a fetus, if one accepts the medical conception, upon live birth, or upon the interim point at which the
definitions of the developing young in the human uterus. See fetus becomes "viable," that is, potentially able to live outside the
Dorland's Illustrated Medical Dictionary 478-479, 547 (24th ed. mother's womb, albeit with artificial aid. 59 Viability is usually
1965). The situation therefore is inherently different from marital placed at about seven months (28 weeks) but may occur earlier,
intimacy, or bedroom possession of obscene material, or marriage, even at 24 weeks. 60 The Aristotelian theory of "mediate
or procreation, or education, with which Eisenstadt and Griswold, animation," that held sway throughout the Middle Ages and the
Stanley, Loving, Skinner, and Pierce and Meyer were respectively Renaissance in Europe, continued to be official Roman Catholic
concerned. As we have intimated above, it is reasonable and dogma until the 19th century, despite opposition to this
"ensoulment" theory from those in the Church who would recognize In view of all this, we do not agree that, by adopting one theory of
the existence of life from the moment of conception. 61 The latter is life, Texas may override the rights of the pregnant woman that are
now, of course, the official belief of the Catholic Church. As one brief at stake. We repeat, however, that the State does have an important
amicus discloses, this is a view strongly held by many non-Catholics and legitimate interest in preserving and protecting the health of
as well, and by many physicians. Substantial problems for precise the pregnant woman, whether she be a resident of the State or a
definition of this view are posed, however, by new embryological nonresident who seeks medical consultation and treatment there,
data that purport to indicate that conception is a "process" over and that it has still another important and legitimate interest in
time, rather than an event, and by new medical techniques such as protecting the potentiality of human life. These interests are
menstrual extraction, the "morning-after" pill, implantation of separate and distinct. Each grows in substantiality as the woman
embryos, artificial insemination, and even artificial wombs. 62 approaches term and, at a point during pregnancy, each becomes
"compelling."

In areas other than criminal abortion, the law has been reluctant to With respect to the State's important and legitimate interest in the
endorse any theory that life, as we recognize it, begins before live health of the mother, the "compelling" point, in the light of present
birth or to accord legal rights to the unborn except in narrowly medical knowledge, is at approximately the end of the first
defined situations and except when the rights are contingent upon trimester. This is so because of the now-established medical fact,
live birth. For example, the traditional rule of tort law denied referred to above at 149, that until the end of the first trimester
recovery for prenatal injuries even though the child was born mortality in abortion may be less than mortality in normal
alive. 63 That rule has been changed in almost every jurisdiction. In childbirth. It follows that, from and after this point, a State may
most States, recovery is said to be permitted only if the fetus was regulate the abortion procedure to the extent that the regulation
viable, or at least quick, when the injuries were sustained, though reasonably relates to the preservation and protection of maternal
few courts have squarely so held. 64 In a recent development, health. Examples of permissible state regulation in this area are
generally opposed by the commentators, some States permit the requirements as to the qualifications of the person who is to
parents of a stillborn child to maintain an action for wrongful death perform the abortion; as to the licensure of that person; as to the
because of prenatal injuries. 65 facility in which the procedure is to be performed, that is, whether it
must be a hospital or may be a clinic or some other place of less-
Such an action, however, would appear to be one to vindicate the than-hospital status; as to the licensing of the facility; and the like.
parents' interest and is thus consistent with the view that the fetus,
at most, represents only the potentiality of life. Similarly, unborn This means, on the other hand, that, for the period of pregnancy
children have been recognized as acquiring rights or interests by prior to this "compelling" point, the attending physician, in
way of inheritance or other devolution of property, and have been consultation with his patient, is free to determine, without
represented by guardians ad litem. 66 Perfection of the interests regulation by the State, that, in his medical judgment, the patient's
involved, again, has generally been contingent upon live birth. In pregnancy should be terminated. If that decision is reached, the
short, the unborn have never been recognized in the law as persons judgment may be effectuated by an abortion free of interference by
in the whole sense. the State.

X With respect to the State's important and legitimate interest in

potential life, the "compelling" point is at viability. This is so because
the fetus then presumably has the capability of meaningful life and even proscribe, abortion except where it is necessary, in
outside the mother's womb. State regulation protective of fetal life appropriate medical judgment, for the preservation of the life or
after viability thus has both logical and biological justifications. If health of the mother.
the State is interested in protecting fetal life after viability, it may go
2. The State may define the term "physician," as it has been
so far as to proscribe abortion during that period, except when it is
necessary to preserve the life or health of the mother. employed in the preceding paragraphs of this Part XI of this opinion,
to mean only a physician currently licensed by the State, and may
Measured against these standards, Art. 1196 of the Texas Penal proscribe any abortion by a person who is not a physician as so
Code, in restricting legal abortions to those "procured or attempted defined.
by medical advice for the purpose of saving the life of the mother,"
sweeps too broadly. The statute makes no distinction between In Doe v. Bolton, post, p. 179, procedural requirements contained in
abortions performed early in pregnancy and those performed later, one of the modern abortion statutes are considered. That opinion
and it limits to a single reason, "saving" the mother's life, the legal and this one, of course, are to be read together. 67
justification for the procedure. The statute, therefore, cannot
survive the constitutional attack made upon it here.
This conclusion makes it unnecessary for us to consider the This holding, we feel, is consistent with the relative weights of the
additional challenge to the Texas statute asserted on grounds of respective interests involved, with the lessons and examples of
medical and legal history, with the lenity of the common law, and
vagueness. See United States v. Vuitch, 402 U.S., at 67-72.
with the demands of the profound problems of the present day. The
XI decision leaves the State free to place increasing restrictions on
abortion as the period of pregnancy lengthens, so long as those
To summarize and to repeat: restrictions are tailored to the recognized state interests. The
1. A state criminal abortion statute of the current Texas type, that decision vindicates the right of the physician to administer medical
excepts from criminality only a lifesaving procedure on behalf of the treatment according to his professional judgment up to the points
mother, without regard to pregnancy stage and without recognition where important state interests provide compelling justifications
of the other interests involved, is violative of the Due Process Clause for intervention. Up to those points, the abortion decision in all its
of the Fourteenth Amendment. aspects is inherently, and primarily, a medical decision, and basic
responsibility for it must rest with the physician. If an individual
(a) For the stage prior to approximately the end of the first practitioner abuses the privilege of exercising proper medical
trimester, the abortion decision and its effectuation must be left to judgment, the usual remedies, judicial and intra-professional, are
the medical judgment of the pregnant woman's attending physician. available.
(b) For the stage subsequent to approximately the end of the first XII
trimester, the State, in promoting its interest in the health of the
mother, may, if it chooses, regulate the abortion procedure in ways Our conclusion that Art. 1196 is unconstitutional means, of course,
that are reasonably related to maternal health. that the Texas abortion statutes, as a unit, must fall. The exception
of Art. 1196 cannot be struck down separately, for then the State
(c) For the stage subsequent to viability, the State in promoting its
interest in the potentiality of human life may, if it chooses, regulate,
would be left with a statute proscribing all abortion procedures no "Art. 1192. Furnishing the means
matter how medically urgent the case.
"Whoever furnishes the means for procuring an abortion knowing
Although the District Court granted appellant Roe declaratory relief, the purpose intended is guilty as an accomplice.
it stopped short of issuing an injunction against enforcement of the "Art. 1193. Attempt at abortion
Texas statutes. The Court has recognized that different
considerations enter into a federal court's decision as to declaratory "If the means used shall fail to produce an abortion, the offender is
relief, on the one hand, and injunctive relief, on the other. Zwickler nevertheless guilty of an attempt to produce abortion, provided it
v. Koota, 389 U.S. 241, 252-255 (1967); Dombrowski v. Pfister, 380 be shown that such means were calculated to produce that result,
U.S. 479 (1965). We are not dealing with a statute that, on its face, and shall be fined not less than one hundred nor more than one
appears to abridge free expression, an area of particular concern thousand dollars.
under Dombrowski and refined in Younger v. Harris, 401 U.S., at 50.
"Art. 1194. Murder in producing abortion
We find it unnecessary to decide whether the District Court erred in "If the death of the mother is occasioned by an abortion so produced
withholding injunctive relief, for we assume the Texas prosecutorial
or by an attempt to effect the same it is murder."
authorities will give full credence to this decision that the present
criminal abortion statutes of that State are unconstitutional.
"Art. 1196. By medical advice
The judgment of the District Court as to intervenor Hallford is "Nothing in this chapter applies to an abortion procured or
reversed, and Dr. Hallford's complaint in intervention is dismissed. attempted by medical advice for the purpose of saving the life of the
In all other respects, the judgment of the District Court is affirmed. mother."
Costs are allowed to the appellee.
The foregoing Articles, together with Art. 1195, compose Chapter 9
It is so ordered. of Title 15 of the Penal Code. Article 1195, not attacked here, reads:
---- Begin EndNotes ---- "Art. 1195. Destroying unborn child
1 "Article 1191. Abortion "Whoever shall during parturition of the mother destroy the vitality
or life in a child in a state of being born and before actual birth,
"If any person shall designedly administer to a pregnant woman or
which child would otherwise have been born alive, shall be confined
knowingly procure to be administered with her consent any drug or
in the penitentiary for life or for not less than five years."
medicine, or shall use towards her any violence or means whatever
externally or internally applied, and thereby procure an abortion, he 2 Ariz. Rev. Stat. Ann. § 13-211 (1956); Conn. Pub. Act No. 1 (May
shall be confined in the penitentiary not less than two nor more 1972 special session) (in 4 Conn. Leg. Serv. 677 (1972)), and Conn.
than five years; if it be done without her consent, the punishment Gen. Stat. Rev. §§ 53-29, 53-30 (1968) (or unborn child); Idaho Code
shall be doubled. By 'abortion' is meant that the life of the fetus or § 18-601 (1948); Ill. Rev. Stat., c. 38, § 23-1 (1971); Ind. Code § 35-
embryo shall be destroyed in the woman's womb or that a 1-58-1 (1971); Iowa Code § 701.1 (1971); Ky. Rev. Stat. § 436.020
premature birth thereof be caused. (1962); La. Rev. Stat. § 37:1285 (6) (1964) (loss of medical license)
(but see § 14:87 (Supp. 1972) containing no exception for the life of existence by actual birth"; that the definition of human life is for the
the mother under the criminal statute); Me. Rev. Stat. Ann., Tit. 17, § legislature and not the courts; that Art. 1196 "is more definite than
51 (1964); Mass. Gen. Laws Ann., c. 272, § 19 (1970) (using the term the District of Columbia statute upheld in [United States v.] Vuitch"
"unlawfully," construed to exclude an abortion to save the mother's (402 U.S. 62); and that the Texas statute "is not vague and indefinite
life, Kudish v. Bd. of Registration, 356 Mass. 98, 248 N. E. 2d 264 or overbroad." A physician's abortion conviction was affirmed.
(1969)); Mich. Comp. Laws § 750.14 (1948); Minn. Stat. § 617.18
(1971); Mo. Rev. Stat. § 559.100 (1969); Mont. Rev. Codes Ann. § 94- In Thompson, n. 2, the court observed that any issue as to the
401 (1969); Neb. Rev. Stat. § 28-405 (1964); Nev. Rev. Stat. § burden of proof under the exemption of Art. 1196 "is not before us."
200.220 (1967); N. H. Rev. Stat. Ann. § 585:13 (1955); N. J. Stat. Ann. But see Veevers v. State, 172 Tex. Cr. R. 162, 168-169, 354 S. W. 2d
161, 166-167 (1962). Cf. United States v. Vuitch, 402 U.S. 62, 69-71
§ 2A:87-1 (1969) ("without lawful justification"); N. D. Cent. Code §§
12-25-01, 12-25-02 (1960); Ohio Rev. Code Ann. § 2901.16 (1953); (1971).
Okla. Stat. Ann., Tit. 21, § 861 (1972-1973 Supp.); Pa. Stat. Ann., Tit. 4 The name is a pseudonym.
18, §§ 4718, 4719 (1963) ("unlawful"); R. I. Gen. Laws Ann. § 11-3-1
(1969); S. D. Comp. Laws Ann. § 22-17-1 (1967); Tenn. Code Ann. §§
39-301, 39-302 (1956); Utah Code Ann. §§ 76-2-1, 76-2-2 (1953); 5 These names are pseudonyms.
Vt. Stat. Ann., Tit. 13, § 101 (1958); W. Va. Code Ann. § 61-2-8
(1966); Wis. Stat. § 940.04 (1969); Wyo. Stat. Ann. §§ 6-77, 6-78 6 The appellee twice states in his brief that the hearing before the
(1957). District Court was held on July 22, 1970. Brief for Appellee 13. The
docket entries, App. 2, and the transcript, App. 76, reveal this to be
3 Long ago, a suggestion was made that the Texas statutes were
an error. The July date appears to be the time of the reporter's
unconstitutionally vague because of definitional deficiencies. The transcription. See App. 77.
Texas Court of Criminal Appeals disposed of that suggestion
peremptorily, saying only, 7 We need not consider what different result, if any, would follow if
Dr. Hallford's intervention were on behalf of a class. His complaint
"It is also insisted in the motion in arrest of judgment that the in intervention does not purport to assert a class suit and makes no
statute is unconstitutional and void in that it does not sufficiently reference to any class apart from an allegation that he "and others
define or describe the offense of abortion. We do not concur in similarly situated" must necessarily guess at the meaning of Art.
respect to this question." Jackson v. State, 55 Tex. Cr. R. 79, 89, 115 1196. His application for leave to intervene goes somewhat further,
S. W. 262, 268 (1908). for it asserts that plaintiff Roe does not adequately protect the
interest of the doctor "and the class of people who are physicians . . .
The same court recently has held again that the State's abortion
[and] the class of people who are . . . patients . . . ." The leave
statutes are not unconstitutionally vague or overbroad. Thompson
application, however, is not the complaint. Despite the District
v. State (Ct. Crim. App. Tex. 1971), appeal docketed, No. 71-1200.
Court's statement to the contrary, 314 F.Supp., at 1225, we fail to
The court held that "the State of Texas has a compelling interest to
perceive the essentials of a class suit in the Hallford complaint.
protect fetal life"; that Art. 1191 "is designed to protect fetal life";
that the Texas homicide statutes, particularly Art. 1205 of the Penal 8 A. Castiglioni, A History of Medicine 84 (2d ed. 1947), E.
Code, are intended to protect a person "in existence by actual birth" Krumbhaar, translator and editor (hereinafter Castiglioni).
and thereby implicitly recognize other human life that is not "in
9 J. Ricci, The Genealogy of Gynaecology 52, 84, 113, 149 (2d ed. 428 (1968) (hereinafter Means I); Stern, Abortion: Reform and the
1950) (hereinafter Ricci); L. Lader, Abortion 75-77 (1966) Law, 59 J. Crim. L. C. & P. S. 84 (1968) (hereinafter Stern); Quay 430-
(hereinafter Lader); K. Niswander, Medical Abortion Practices in the 432; Williams 152.
United States, in Abortion and the Law 37, 38-40 (D. Smith ed.
22 Early philosophers believed that the embryo or fetus did not
1967); G. Williams, The Sanctity of Life and the Criminal Law 148
(1957) (hereinafter Williams); J. Noonan, An Almost Absolute Value become formed and begin to live until at least 40 days after
in History, in The Morality of Abortion 1, 3-7 (J. Noonan ed. 1970) conception for a male, and 80 to 90 days for a female. See, for
(hereinafter Noonan); Quay, Justifiable Abortion -- Medical and example, Aristotle, Hist. Anim. 7.3.583b; Gen. Anim. 2.3.736, 2.5.741;
Legal Foundations (pt. 2), 49 Geo. L. J. 395, 406-422 (1961) Hippocrates, Lib. de Nat. Puer., No. 10. Aristotle's thinking derived
from his three-stage theory of life: vegetable, animal, rational. The
(hereinafter Quay).
vegetable stage was reached at conception, the animal at
10 L. Edelstein, The Hippocratic Oath 10 (1943) (hereinafter "animation," and the rational soon after live birth. This theory,
Edelstein). But see Castiglioni 227. together with the 40/80 day view, came to be accepted by early
Christian thinkers.
11 Edelstein 12; Ricci 113-114, 118-119; Noonan 5.
12 Edelstein 13-14.
The theological debate was reflected in the writings of St. Augustine,
13 Castiglioni 148. who made a distinction between embryo inanimatus, not yet
14 Id., at 154. endowed with a soul, and embryo animatus. He may have drawn
upon Exodus 21:22. At one point, however, he expressed the view
15 Edelstein 3. that human powers cannot determine the point during fetal
16 Id., at 12, 15-18. development at which the critical change occurs. See Augustine, De
Origine Animae 4.4 (Pub. Law 44.527). See also W. Reany, The
17 Id., at 18; Lader 76. Creation of the Human Soul, c. 2 and 83-86 (1932); Huser, The
Crime of Abortion in Canon Law 15 (Catholic Univ. of America,
18 Edelstein 63. Canon Law Studies No. 162, Washington, D. C., 1942).
19 Id., at 64. Galen, in three treatises related to embryology, accepted the
thinking of Aristotle and his followers. Quay 426-427. Later,
Augustine on abortion was incorporated by Gratian into the
20 Dorland's Illustrated Medical Dictionary 1261 (24th ed. 1965). Decretum, published about 1140. Decretum Magistri Gratiani
2.32.2.7 to 2.32.2.10, in 1 Corpus Juris Canonici 1122, 1123 (A.
21 E. Coke, Institutes III *50; 1 W. Hawkins, Pleas of the Crown, c.
Friedburg, 2d ed. 1879). This Decretal and the Decretals that
31, § 16 (4th ed. 1762); 1 W. Blackstone, Commentaries *129-130;
followed were recognized as the definitive body of canon law until
M. Hale, Pleas of the Crown 433 (1st Amer. ed. 1847). For
the new Code of 1917.
discussions of the role of the quickening concept in English common
law, see Lader 78; Noonan 223-226; Means, The Law of New York For discussions of the canon-law treatment, see Means I, pp. 411-
Concerning Abortion and the Status of the Foetus, 1664-1968: A 412; Noonan 20-26; Quay 426-430; see also J. Noonan,
Case of Cessation of Constitutionality (pt. 1), 14 N. Y. L. F. 411, 418-
Contraception: A History of Its Treatment by the Catholic State v. Cooper, 22 N. J. L. 52, 58 (1849); Abrams v. Foshee, 3 Iowa
Theologians and Canonists 18-29 (1965). 274, 278-280 (1856); Smith v. Gaffard, 31 Ala. 45, 51 (1857);
Mitchell v. Commonwealth, 78 Ky. 204, 210 (1879); Eggart v. State,
23 Bracton took the position that abortion by blow or poison was 40 Fla. 527, 532, 25 So. 144, 145 (1898); State v. Alcorn, 7 Idaho
homicide "if the foetus be already formed and animated, and
599, 606, 64 P. 1014, 1016 (1901); Edwards v. State, 79 Neb. 251,
particularly if it be animated." 2 H. Bracton, De Legibus et 252, 112 N. W. 611, 612 (1907); Gray v. State, 77 Tex. Cr. R. 221,
Consuetudinibus Angliae 279 (T. Twiss ed. 1879), or, as a later 224, 178 S. W. 337, 338 (1915); Miller v. Bennett, 190 Va. 162, 169,
translation puts it, "if the foetus is already formed or quickened, 56 S. E. 2d 217, 221 (1949). Contra, Mills v. Commonwealth, 13 Pa.
especially if it is quickened," 2 H. Bracton, On the Laws and Customs 631, 633 (1850); State v. Slagle, 83 N. C. 630, 632 (1880).
of England 341 (S. Thorne ed. 1968). See Quay 431; see also 2 Fleta
60-61 (Book 1, c. 23) (Selden Society ed. 1955). 28 See Smith v. State, 33 Me. 48, 55 (1851); Evans v. People, 49 N. Y.
86, 88 (1872); Lamb v. State, 67 Md. 524, 533, 10 A. 208 (1887).
24 E. Coke, Institutes III *50.
29 Conn. Stat., Tit. 20, § 14 (1821).
25 1 W. Blackstone, Commentaries *129-130.
30 Conn. Pub. Acts, c. 71, § 1 (1860).
26 Means, The Phoenix of Abortional Freedom: Is a Penumbral or
Ninth-Amendment Right About to Arise from the Nineteenth- 31 N. Y. Rev. Stat., pt. 4, c. 1, Tit. 2, Art. 1, § 9, p. 661, and Tit. 6, § 21,
Century Legislative Ashes of a Fourteenth-Century Common-Law p. 694 (1829).
Liberty?, 17 N. Y. L. F. 335 (1971) (hereinafter Means II). The author
examines the two principal precedents cited marginally by Coke, 32 Act of Jan. 20, 1840, § 1, set forth in 2 H. Gammel, Laws of Texas
both contrary to his dictum, and traces the treatment of these and 177-178 (1898); see Grigsby v. Reib, 105 Tex. 597, 600, 153 S. W.
other cases by earlier commentators. He concludes that Coke, who 1124, 1125 (1913).
himself participated as an advocate in an abortion case in 1601, may
have intentionally misstated the law. The author even suggests a
reason: Coke's strong feelings against abortion, coupled with his 33 The early statutes are discussed in Quay 435-438. See also Lader
determination to assert common-law (secular) jurisdiction to assess 85-88; Stern 85-88; and Means II 375-376.
penalties for an offense that traditionally had been an exclusively 34 Criminal abortion statutes in effect in the States as of 1961,
ecclesiastical or canon-law crime. See also Lader 78-79, who notes together with historical statutory development and important
that some scholars doubt that the common law ever was applied to
judicial interpretations of the state statutes, are cited and quoted in
abortion; that the English ecclesiastical courts seem to have lost
Quay 447-520. See Comment, A Survey of the Present Statutory and
interest in the problem after 1527; and that the preamble to the Case Law on Abortion: The Contradictions and the Problems, 1972
English legislation of 1803, 43 Geo. 3, c. 58, § 1, referred to in the U. Ill. L. F. 177, 179, classifying the abortion statutes and listing 25
text, infra, at 136, states that "no adequate means have been States as permitting abortion only if necessary to save or preserve
hitherto provided for the prevention and punishment of such
the mother's life.
offenses."
35 Ala. Code, Tit. 14, § 9 (1958); D. C. Code Ann. § 22-201 (1967).
27 Commonwealth v. Bangs, 9 Mass. 387, 388 (1812);
Commonwealth v. Parker, 50 Mass. (9 Metc.) 263, 265-266 (1845);
36 Mass. Gen. Laws Ann., c. 272, § 19 (1970); N. J. Stat. Ann. § 2A:87- "Whereas, The standards of sound clinical judgment, which,
1 (1969); Pa. Stat. Ann., Tit. 18, §§ 4718, 4719 (1963). together with informed patient consent should be determinative
according to the merits of each individual case; therefore be it
37 Fourteen States have adopted some form of the ALI statute. See
Ark. Stat. Ann. §§ 41-303 to 41-310 (Supp. 1971); Calif. Health & "RESOLVED, That abortion is a medical procedure and should be
Safety Code §§ 25950-25955.5 (Supp. 1972); Colo. Rev. Stat. Ann. §§ performed only by a duly licensed physician and surgeon in an
40-2-50 to 40-2-53 (Cum. Supp. 1967); Del. Code Ann., Tit. 24, §§ accredited hospital acting only after consultation with two other
1790-1793 (Supp. 1972); Florida Law of Apr. 13, 1972, c. 72-196, physicians chosen because of their professional competency and in
1972 Fla. Sess. Law Serv., pp. 380-382; Ga. Code §§ 26-1201 to 26- conformance with standards of good medical practice and the
1203 (1972); Kan. Stat. Ann. § 21-3407 (Supp. 1971); Md. Ann. Medical Practice Act of his State; and be it further
Code, Art. 43, §§ 137-139 (1971); Miss. Code Ann. § 2223 (Supp.
1972); N. M. "RESOLVED, That no physician or other professional personnel shall
be compelled to perform any act which violates his good medical
Stat. Ann. §§ 40A-5-1 to 40A-5-3 (1972); N. C. Gen. Stat. § 14-45.1 judgment. Neither physician, hospital, nor hospital personnel shall
(Supp. 1971); Ore. Rev. Stat. §§ 435.405 to 435.495 (1971); S. C. be required to perform any act violative of personally-held moral
Code Ann. §§ 16-82 to 16-89 (1962 and Supp. 1971); Va. Code Ann. principles. In these circumstances good medical practice requires
§§ 18.1-62 to 18.1-62.3 (Supp. 1972). Mr. Justice Clark described only that the physician or other professional personnel withdraw
some of these States as having "led the way." Religion, Morality, and from the case so long as the withdrawal is consistent with good
Abortion: A Constitutional Appraisal, 2 Loyola U. (L. A.) L. Rev. 1, 11 medical practice." Proceedings of the AMA House of Delegates 220
(1969). (June 1970).
By the end of 1970, four other States had repealed criminal 39 "The Principles of Medical Ethics of the AMA do not prohibit a
penalties for abortions performed in early pregnancy by a licensed physician from performing an abortion that is performed in
physician, subject to stated procedural and health requirements. accordance with good medical practice and under circumstances
Alaska Stat. § 11.15.060 (1970); Haw. Rev. Stat. § 453-16 (Supp. that do not violate the laws of the community in which he practices.
1971); N. Y. Penal Code § 125.05, subd. 3 (Supp. 1972-1973); Wash.
Rev. Code §§ 9.02.060 to 9.02.080 (Supp. 1972). The precise status "In the matter of abortions, as of any other medical procedure, the
of criminal abortion laws in some States is made unclear by recent Judicial Council becomes involved whenever there is alleged
decisions in state and federal courts striking down existing state violation of the Principles of Medical Ethics as established by the
laws, in whole or in part. House of Delegates."

38 "Whereas, Abortion, like any other medical procedure, should 40 "UNIFORM ABORTION ACT
not be performed when contrary to the best interests of the patient
since good medical practice requires due consideration for the "SECTION 1. [Abortion Defined; When Authorized.]
patient's welfare and not mere acquiescence to the patient's "(a) 'Abortion' means the termination of human pregnancy with an
demand; and intention other than to produce a live birth or to remove a dead
fetus.
"(b) An abortion may be performed in this state only if it is "SECTION 6. [Repeal.] The following acts and parts of acts are
performed: repealed:
"(1) by a physician licensed to practice medicine [or osteopathy] in "(1)
this state or by a physician practicing medicine [or osteopathy] in
the employ of the government of the United States or of this state, "(2)
[and the abortion is performed [in the physician's office or in a "(3)
medical clinic, or] in a hospital approved by the [Department of
Health] or operated by the United States, this state, or any "SECTION 7. [Time of Taking Effect.] This Act shall take effect -- -- --
department, agency, or political subdivision of either;] or by a -- -- -- ."
female upon herself upon the advice of the physician; and
41 "This Act is based largely upon the New York abortion act
"(2) within [20] weeks after the commencement of the pregnancy following a review of the more recent laws on abortion in several
[or after [20] weeks only if the physician has reasonable cause to states and upon recognition of a more liberal trend in laws on this
believe (i) there is a substantial risk that continuance of the subject. Recognition was given also to the several decisions in state
pregnancy would endanger the life of the mother or would gravely and federal courts which show a further trend toward liberalization
impair the physical or mental health of the mother, (ii) that the child of abortion laws, especially during the first trimester of pregnancy.
would be born with grave physical or mental defect, or (iii) that the
pregnancy resulted from rape or incest, or illicit intercourse with a "Recognizing that a number of problems appeared in New York, a
girl under the age of 16 years]. shorter time period for 'unlimited' abortions was advisable. The
time period was bracketed to permit the various states to insert a
"SECTION 2. [Penalty.] Any person who performs or procures an figure more in keeping with the different conditions that might exist
abortion other than authorized by this Act is guilty of a [felony] and, among the states. Likewise, the language limiting the place or places
upon conviction thereof, may be sentenced to pay a fine not in which abortions may be performed was also bracketed to account
exceeding [$ 1,000] or to imprisonment [in the state penitentiary] for different conditions among the states. In addition, limitations on
not exceeding [5 years], or both. abortions after the initial 'unlimited' period were placed in brackets
so that individual states may adopt all or any of these reasons, or
"SECTION 3. [Uniformity of Interpretation.] This Act shall be
construed to effectuate its general purpose to make uniform the law place further restrictions upon abortions after the initial period.
with respect to the subject of this Act among those states which "This Act does not contain any provision relating to medical review
enact it. committees or prohibitions against sanctions imposed upon medical
"SECTION 4. [Short Title.] This Act may be cited as the Uniform personnel refusing to participate in abortions because of religious
Abortion Act. or other similar reasons, or the like. Such provisions, while related,
do not directly pertain to when, where, or by whom abortions may
"SECTION 5. [Severability.] If any provision of this Act or the be performed; however, the Act is not drafted to exclude such a
application thereof to any person or circumstance is held invalid, provision by a state wishing to enact the same."
the invalidity does not affect other provisions or applications of this
Act which can be given effect without the invalid provision or 42 See, for example, YWCA v. Kugler, 342 F.Supp. 1048, 1074 (N. J.
application, and to this end the provisions of this Act are severable. 1972); Abele v. Markle, 342 F.Supp. 800, 805-806 (Conn. 1972)
(Newman, J., concurring in result), appeal docketed, No. 72-56; 50 See Smith v. State, 33 Me., at 55; In re Vince, 2 N. J. 443, 450, 67 A.
Walsingham v. State, 250 So. 2d 857, 863 (Ervin, J., concurring) (Fla. 2d 141, 144 (1949). A short discussion of the modern law on this
1971); State v. Gedicke, 43 N. J. L. 86, 90 (1881); Means II 381-382. issue is contained in the Comment to the ALI's Model Penal Code §
207.11, at 158 and nn. 35-37 (Tent. Draft No. 9, 1959).
43 See C. Haagensen &
51 Tr. of Oral Rearg. 20-21.
W. Lloyd, A Hundred Years of Medicine 19 (1943).
52 Tr. of Oral Rearg. 24.
44 Potts, Postconceptive Control of Fertility, 8 Int'l J. of G. & O. 957,
967 (1970) (England and Wales); Abortion Mortality, 20 Morbidity 53 We are not aware that in the taking of any census under this
and Mortality 208, 209 (June 12, 1971) (U.S. Dept. of HEW, Public clause, a fetus has ever been counted.
Health Service) (New York City); Tietze, United States: Therapeutic
54 When Texas urges that a fetus is entitled to Fourteenth
Abortions, 1963-1968, 59 Studies in Family Planning 5, 7 (1970);
Tietze, Mortality with Contraception and Induced Abortion, 45 Amendment protection as a person, it faces a dilemma. Neither in
Studies in Family Planning 6 (1969) (Japan, Czechoslovakia, Texas nor in any other State are all abortions prohibited. Despite
Hungary); Tietze & Lehfeldt, Legal Abortion in Eastern Europe, 175 broad proscription, an exception always exists. The exception
J. A. M. A. 1149, 1152 (April 1961). Other sources are discussed in contained in Art. 1196, for an abortion procured or attempted by
medical advice for the purpose of saving the life of the mother, is
Lader 17-23.
typical. But if the fetus is a person who is not to be deprived of life
45 See Brief of Amicus National Right to Life Committee; R. Drinan, without due process of law, and if the mother's condition is the sole
The Inviolability of the Right to Be Born, in Abortion and the Law determinant, does not the Texas exception appear to be out of line
107 (D. Smith ed. 1967); Louisell, Abortion, The Practice of Medicine with the Amendment's command?
and the Due Process of Law, 16 U. C. L. A. L. Rev. 233 (1969);
Noonan 1. There are other inconsistencies between Fourteenth Amendment
status and the typical abortion statute. It has already been pointed
46 See, e. g., Abele v. Markle, 342 F.Supp. 800 (Conn. 1972), appeal out, n. 49, supra, that in Texas the woman is not a principal or an
docketed, No. 72-56. accomplice with respect to an abortion upon her. If the fetus is a
person, why is the woman not a principal or an accomplice? Further,
47 See discussions in Means I and Means II. the penalty for criminal abortion specified by Art. 1195 is
48 See, e. g., State v. Murphy, 27 N. J. L. 112, 114 (1858). significantly less than the maximum penalty for murder prescribed
by Art. 1257 of the Texas Penal Code. If the fetus is a person, may
49 Watson v. State, 9 Tex. App. 237, 244-245 (1880); Moore v. State, the penalties be different?
37 Tex. Cr. R. 552, 561, 40 S. W. 287, 290 (1897); Shaw v. State, 73
Tex. Cr. R. 337, 339, 165 S. W. 930, 931 (1914); Fondren v. State, 74 55 Cf. the Wisconsin abortion statute, defining "unborn child" to
Tex. Cr. R. 552, 557, 169 S. W. 411, 414 (1914); Gray v. State, 77 Tex. mean "a human being from the time of conception until it is born
Cr. R. 221, 229, 178 S. W. 337, 341 (1915). There is no immunity in alive," Wis. Stat. § 940.04 (6) (1969), and the new Connecticut
Texas for the father who is not married to the mother. Hammett v. statute, Pub. Act No. 1 (May 1972 special session), declaring it to be
State, 84 Tex. Cr. R. 635, 209 S. W. 661 (1919); Thompson v. State the public policy of the State and the legislative intent "to protect
(Ct. Crim. App. Tex. 1971), appeal docketed, No. 71-1200. and preserve human life from the moment of conception."
56 Edelstein 16. 66 Louisell, Abortion, The Practice of Medicine and the Due Process
of Law, 16 U. C. L. A. L. Rev. 233, 235-238 (1969); Note, 56 Iowa L.
57 Lader 97-99; D. Feldman, Birth Control in Jewish Law 251-294 Rev. 994, 999-1000 (1971); Note, The Law and the Unborn Child, 46
(1968). For a stricter view, see I. Jakobovits, Jewish Views on Notre Dame Law. 349, 351-354 (1971).
Abortion, in Abortion and the Law 124 (D. Smith ed. 1967).
67 Neither in this opinion nor in Doe v. Bolton, post, p. 179, do we
58 Amicus Brief for the American Ethical Union et al. For the discuss the father's rights, if any exist in the constitutional context,
position of the National Council of Churches and of other in the abortion decision. No paternal right has been asserted in
denominations, see Lader 99-101.
either of the cases, and the Texas and the Georgia statutes on their
59 L. Hellman & J. Pritchard, Williams Obstetrics 493 (14th ed. face take no cognizance of the father. We are aware that some
1971); Dorland's Illustrated Medical Dictionary 1689 (24th ed. statutes recognize the father under certain circumstances. North
1965). Carolina, for example, N. C. Gen. Stat. § 14-45.1 (Supp. 1971),
requires written permission for the abortion from the husband
60 Hellman & Pritchard, supra, n. 59, at 493. when the woman is a married minor, that is, when she is less than
18 years of age, 41 N. C. A. G. 489 (1971); if the woman is an
61 For discussions of the development of the Roman Catholic
position, see D. Callahan, Abortion: Law, Choice, and Morality 409- unmarried minor, written permission from the parents is required.
447 (1970); Noonan 1. We need not now decide whether provisions of this kind are
constitutional.
62 See Brodie, The New Biology and the Prenatal Child, 9 J. Family L.
391, 397 (1970); Gorney, The New Biology and the Future of Man,
15 U. C. L. A. L. Rev. 273 (1968); Note, Criminal Law -- Abortion --
The "Morning-After Pill" and Other Pre-Implantation Birth-Control
Methods and the Law, 46 Ore. L. Rev. 211 (1967); G. Taylor, The
ANTONIO GELUZ, petitioner, vs. THE HON. COURT
Biological Time Bomb 32 (1968); A. Rosenfeld, The Second Genesis
138-139 (1969); Smith, Through a Test Tube Darkly: Artificial OF APPEALS and OSCAR LAZO, respondents.
Insemination and the Law, 67 Mich. L. Rev. 127 (1968); Note,
Artificial Insemination and the Law, 1968 U. Ill. L. F. 203.
Mariano H. de Joya for petitioner.
63 W. Prosser, The Law of Torts 335-338 (4th ed. 1971); 2 F. Harper
& F. James, The Law of Torts 1028-1031 (1956); Note, 63 Harv. L. A.P. Salvador for respondents.
Rev. 173 (1949). G.R. No. L-16439 | 1961-07-20
64 See cases cited in Prosser, supra, n. 63, at 336-338; Annotation, Republic of the Philippines
Action for Death of Unborn Child, 15 A. L. R. 3d 992 (1967).
SUPREME COURT
65 Prosser, supra, n. 63, at 338; Note, The Law and the Unborn Manila
Child: The Legal and Logical Inconsistencies, 46 Notre Dame Law.
349, 354-360 (1971). EN BANC
 DECISION daughter Lucida, she again repaired to the defendant's
clinic on Carriedo and P. Gomez streets in Manila, where
REYES, J.B.L., J.: the three met the defendant and his wife. Nita was again
aborted, of a two-month old foetus, in consideration of the
This petition for certiorari brings up for review the question sum of fifty pesos, Philippine currency. The plaintiff was at
whether the husband of a woman, who voluntarily this time in the province of Cagayan, campaigning for his
procured her abortion, could recover damages from the election to the provincial board; he did not know of, nor
physician who caused the same. gave his consent to, the abortion."

The litigation was commenced in the Court of First It is the third and last abortion that constitutes plaintiffs
Instance of Manila by respondent Oscar Lazo, the husband basis in filing this action and award of damages. Upon
of Nita Villanueva, against petitioner Antonio Geluz, a application of the defendant Geluz, we granted certiorari.
physician. Convinced of the merits of the complaint upon
the evidence adduced, the trial court rendered judgment The Court of Appeals and the trial court predicated the
in favor of plaintiff Lazo and against defendant Geluz award of damages in the sum of P3,000.00 upon the
ordering the latter to pay P3,000 as damages, P700 as provisions of the initial paragraph of Article 2206 of the
attorney's fees and the costs of the suit. On appeal, the Civil Code of the Philippines. This we believe to be error,
Court of Appeals, in a special division of five, sustained the for the said article, in fixing a minimum award of P3,000
award by a majority vote of three justices as against two, for the death of a person, does not cover the case of an
who rendered a separate dissenting opinion. unborn foetus that is not endowed with personality. Under
the system of our Civil Code, "la criatura abortiva no
The facts are set forth in the majority opinion as follows: alcanza la categoria de persona natural y en consecuencia
es un ser no nacido a la vida del Derecho" (Casso-Cervera,
"Nita Villanueva came to know the defendant (Antonio "Diccionario de Derecho Privado" Vol. 1, p. 49). being
Geluz) for the first time in 1948 - through her aunt Paula incapable of having rights and obligations.
Yambot. In 1950 she became pregnant by her present
husband before they were legally married. Desiring to Since an action for pecuniary damages on account of
conceal her pregnancy from her parent, and acting on the personal injury or death pertains primarily to the one
advice of her aunt, she had herself aborted by the injured, it is easy to see that if no action for such damages
defendant. After her marriage with the plaintiff, she again could be instituted on behalf of the unborn child on
became pregnant. As she was then employed in the account of the injuries it received, no such right of action
Commission on Elections and her pregnancy proved to be could derivatively accrue to its parents or heirs. In fact,
inconvenient, she had herself aborted again by the even if a cause of action did accrue on behalf of the unborn
defendant in October 1953. Less than two years later, she child, the same was extinguished by its pre-natal death,
again became pregnant. On February 21, 1955, since no transmission to anyone can take place from one
accompanied by her sister Purificacion and the latter's that lacked juridical personality (or juridical capacity, as
distinguished from capacity to act). It is no answer to found, and the majority opinion of the Court of Appeals did
invoke the provisional personality of a conceived child not contradict it, that the appellee was aware of the
(conceptus pro nato habetur) under Article 40 of the Civil second abortion; and the probabilities are that he was
Code, because that same article expressly limits such likewise aware of the first. Yet despite the suspicious
provisional personality by imposing the condition that the repetition of the event, he appeared to have taken no
child should be subsequently born alive: "provided it be steps to investigate or pinpoint the causes thereof, and
born later with the conditions specified in the following secure the punishment of the responsible practitioner.
article". In the present case, there is no dispute that the Even after learning of the third abortion, the appellee does
child was dead when separated from its mother's womb. not seem to have taken interest in the administrative and
criminal cases against the appellant. His only concern
The prevailing American jurisprudence is to the same appears to have been directed at obtaining from the doctor
effect; and is generally held that recovery can not be had a large money payment, since he sued for P50,000
for the death of an unborn child (Stafford vs. Roadway damages and P3,000 attorneys fees, an "indemnity" claim
Transit Co., 70 F. Supp. 555; Dietrich vs. Northhampton, that, under the circumstances of record, was clearly
52 Am. Rep. 242; and numerous cases collated in the exaggerated.
editorial note, 10 ALR (2d) 639).

This is not to say that the parents are not entitled to collect The dissenting Justices of the Court of Appeals have aptly
any damages at all. But such damages must be those remarked that:
inflicted directly upon them, as distinguished from the
injury or violation of the rights of the deceased, his right "It seems to us that the normal reaction of a husband who
to life and physical integrity. Because the parents can not righteously feels outraged by the abortion which his wife
expect either help, support or services from an unborn has deliberately sought at the hands of a physician would
child, they would normally be limited to moral damages be high-minded rather than mercenary; and that his
for the illegal arrest of the normal development of the spes primary concern would be to see to it that the medical
hominis that was the foetus, i.e. on account of distress and profession was purged of an unworthy member rather
anguish attendant to its loss, and the disappointment of than turn his wife's indiscretion to personal profit, and with
their parental expectations (Civ. Code, Art. 2217), as well that idea in mind to press either the administrative or the
as to exemplary damages, if the circumstances should criminal cases he had filed, or both, instead of abandoning
warrant them (Art. 2230). But in the case before us, both them in favor of a civil action for damages of which not
the trial court and the Court of Appeals have not found any only he, but also his wife, would be the beneficiaries."
basis for an award of moral damages, evidently because
the appellee's indifference to the previous abortions of his It is unquestionable that the appellant's act in provoking
wife, also caused by the appellant herein, clearly indicates the abortion of appellee's wife, without medical necessity
that he was unconcerned with the frustration of his to warrant it, was a criminal and morally reprehensible act,
parental hopes and affections. The lower court expressly that can not be too severely condemned; and the consent
of the woman or that of her husband does not excuse it. DECISION
But the immorality or illegality of the act does not justify
an award of damages that, under the circumstances on
record, have no factual or legal basis. REYES, J:

The decision appealed from is reversed, and the complaint Appeal on points of law from an order of the Court of First
ordered dismissed. Without costs. Instance of Zamboanga del Norte (Judge Onofre Sison
Abalos, presiding), in its Civil Case No. 1590, dismissing a
Let a copy of this decision be furnished the Department of complaint for support and damages, and another order
Justice and the Board of Medical Examiners for their denying amendment of the same pleading.
information and such investigation and action against the
appellee Antonio Geluz as the facts may warrant. The events in the court of origin can be summarized as
follows:
Bengzon, C.J., Padilla, Labrador, Barrera, Paredes, Dizon
and Natividad, JJ., concur. Appellant, Carmen Quimiguing, assisted by her parents,
sued Felix Icao in the court below. In her complaint it was
averred that the parties were neighbors in Dapitan City,
and had close and confidential relations; that defendant
CARMEN QUIMIGUING, Suing through her parents, Icao, although married, succeeded in having carnal
intercourse with plaintiff several times by force and
ANTONIO QUIMIGUING and JACOBA CABILIN, intimidation, and without her consent; that as a result she
plaintiffs-appellants, vs. FELIX ICAO, defendant- became pregnant, despite efforts and drugs supplied by
defendant, and plaintiff had to stop studying. Hence, she
appellee. claimed support at P120.00 per month, damages and
attorney's fees.
Torcuato L. Galon for plaintiffs-appellants. Duly summoned, defendant Icao moved to dismiss for lack
Godardo Jacinto for defendant-appellee. of cause of action since the complaint did not allege that
the child had been born; and after hearing arguments, the
G.R. No. L-26795 | 1970-07-31
trial judge sustained defendant's motion and dismissed
Republic of the Philippines the complaint.
SUPREME COURT
Manila Thereafter, plaintiff moved to amend the complaint to
allege that as a result of the intercourse, plaintiff had later
EN BANC given birth to a baby girl; but the court, sustaining
defendant's objection, ruled that no amendment was
allowable, since the original complaint averred no cause of It is thus clear that the lower court's theory that Article
action. Wherefore, the plaintiff appealed directly to this 291 of the Civil Code declaring that support is an obligation
Court. of parents and illegitimate children "does not contemplate
support to children as yet unborn," violates Article 40
We find the appealed orders of the court below to be aforesaid, besides imposing a condition that nowhere
untenable. A conceived child, although as yet unborn, is appears in the text of Article 291.
given by law a provisional personality of its own for all
purposes favorable to it, as explicitly provided in Article 40 It is true that Article 40 prescribing that "the conceived
of the Civil Code of the Philippines. The unborn child, child shall be considered born for ail purposes that are
therefore, has a right to support from it progenitors, favorable to it" adds further "provided it be born later with
particularly of the defendant-appellee (whose paternity is the conditions specified in the following article" (i.e., that
deemed admitted for the purpose of the motion to the foetus be alive at the time it is completely delivered
dismiss), even if the said child is only "en ventre de sa from the mother's womb). This proviso, however, is not a
mere;" just as a conceived child, even if as yet unborn, condition precedent to the right of the conceived child; for
may receive donations as prescribed by Article 742 of the if it were, the first part of Article 40 would become entirely
same Code, and its being ignored by the parent in his useless and ineffective. Manresa, in his Commentaries
testament may result in preterition of a forced heir that (5th Ed.) to the corresponding Article 29 of the Spanish
annuls the institution of the testamentary heir, even if Civil Code, clearly points this out:
such child should be born after the death of the testator
(Article 854, Civil Code) "Los derechos atribuidos al nasciturus no son simples
expectativas, ni aun en el sentido tecnico que la moderna
"ART. 742. Donations made to conceived and unborn doctrina da a esta figura juridica, sino que constituyen un
children may be accepted by those persons who would caso de los propiamente llamados 'derechos en estado de
legally represent them if they were already born." pendencia'; el nacimiento del sujeto en las condiciones
previstas por el art. 30, no determina el nacimiento de
"ART. 854. The preterition or omission of one, some, or aquellos derechos (que ya existian de antemano), sino que
all of the compulsory heirs in the direct line, whether se trata de un hecho que tiene efectos declarativos. (1
living at the time of the execution of the will or born after Manresa, Op. cit., page 271)
the death of the testator, shall annul the institution of
heir; but the devises and legacies shall be valid insofar A second reason for reversing the orders appealed from is
as they are not inofficious. that for a married man to force a woman not his wife to
yield to his lust (as averred in the original complaint in this
"If the omitted compulsory heirs should die before the case) constitutes a clear violation of the rights of his victim
testator, the institution shall be effectual, without that entitles her to claim compensation for the damage
prejudice to the right of representation." caused. Says Article 21 of the Civil Code of the Philippines:
"ART. 21. Any person who wilfully causes loss or injury to G.R. No. 39110 | 1933-11-28
another in a manner that is contrary to morals, good DECIS ION
customs or public policy shall compensate the latter for
the damage.' STREET, J:
The rule of Article 21 is supported by Article 2219 of the
This action was instituted in the Court of First Instance of
same Code:
Manila by Antonia Loanco de Jesus in her own right and by
her mother, Pilar Marque, as next friend and
"ART. 2219. Moral damages may be recovered in the
representative of Ismael and Pacita Loanco, infants,
following and analogous cases:
children of the first-named plaintiff, for the purpose of
recovering from the defendant, Cesar Syquia, the sum of
(3) Seduction, abduction, rape or other lascivious acts:
thirty thousand pesos as damages resulting to the first-
xxx xxx xxx
named plaintiff from breach of a marriage promise, to
compel the defendant to recognize Ismael and Pacita as
(10) Acts and actions referred to in Articles 21, 26, 27, 28
natural children begotten by him with Antonia, and to pay
. . ."
for the maintenance of the three the amount of five
hundred pesos per month, together with costs. Upon
Thus, independently of the right to support of the child she
was carrying, plaintiff herself had a cause of action for hearing the cause, after answer of the defendant, the trial
damages under the terms of the complaint; and the order court entered a decree requiring the defendant to
recognize Ismael Loanco as his natural child and to pay
dismissing it for failure to state a cause of action was
doubly in error. maintenance for him at the rate of fifty pesos per month,
with costs, dismissing the action in other respects. From
this judgment both parties appealed, the plaintiffs from so
WHEREFORE, the orders under appeal are reversed and
set aside. Let the case be remanded to the court of origin much of the decision as denied part of the relief sought by
for further proceedings conformable to this decision. Costs them, and the defendant from that feature of the decision
against appellee Felix Icao. So ordered. which required him to recognize Ismael Loanco and to pay
for his maintenance.
Concepcion, C.J., Dizon, Makalintal, Zaldivar, Castro,
Fernando, Teehankee, Barredo and Villamor, JJ., concur. At the time with which we are here concerned, the
defendant, Cesar Syquia was of the age of twenty-three
years, and an unmarried scion of a prominent family in
Manila, being possessed of a considerable property in his
own right. His brother-in-law, Vicente Mendoza is the
ANTONIA L. DE JESUS, ET AL., plaintiffs-appellants, owner of a barber shop in Tondo, where the defendant was
vs. CESAR SYQUIA, defendant-appellant. accustomed to go for tonsorial attention. In the month of
June Antonia Loanco, a likely unmarried girl of the age of
twenty years, was taken on as cashier in this barber shop. When Antonia was able to leave the hospital, Syquia took
Syquia was not long in making her acquaintance and her, with her mother and the baby, to a house at No. 551
amorous relations resulted, as a consequence of which Camarines Street, Manila, where they lived together for
Antonia was gotten with child and a baby boy was born on about a year in regular family style, all household
June 17, 1931. The defendant was a constant visitor at the expenses, including gas and electric light, being defrayed
home of Antonia in the early months of her pregnancy, by Syquia. In course of time, however, the defendant's
and in February, 1931, he wrote and placed in her hands ardor abated and, when Antonia began to show signs of a
a note directed to the padre who was expected to christen second pregnancy, the defendant decamped, and he is
the baby. This note was as follows: now married to another woman. A point that should here
be noted is that when the time came for christening the
"Saturday, 1.30 p. m. child, the defendant, who had charge of the arrangements
"February 14, 1931 for this ceremony, caused the name Ismael Loanco to be
given to him, instead of Cesar Syquia, jr., as was at first
"REV. FATHER, planned.

"The baby due in June is mine and I should like for my The first question that is presented in the case is whether
name to be given to it. the note to the padre, quoted above, in connection with
the letters written by the defendant to the mother during
"CESAR SYQUIA" pregnancy, proves an acknowledgment of paternity,
within the meaning of subsection 1 of article 135 of the
The occasion for writing this note was that the defendant Civil Code. Upon this point we have no hesitancy in holding
was on the eve of his departure on a trip to China and that the acknowledgment thus show is sufficient. It is a
Japan; and while he was abroad on this visit he wrote universal rule of jurisprudence that a child, upon being
several letters to Antonia showing a paternal interest in conceived, becomes a bearer of legal rights and capable
the situation that had developed with her, and cautioning of being dealt with as a living person. The fact that it is as
her to keep in good condition in order that "junior" yet unborn is no impediment to the acquisition of rights.
(meaning the baby to be, "Syquia, jr.") might be strong, The problem here presented of the recognition of an
and promising to return to them soon. The baby arrived at unborn child is really not different from that presented in
the time expected, and all necessary anticipatory the ordinary case of the recognition of a child already born
preparations were made by the defendant. To this end he and bearing a specific name. Only the means and
employed his friend Dr. Crescenciano Talavera to attend resources of identification are different. Even a bequest to
at the birth, and made arrangements for the a living child requires oral evidence to connect the
hospitalization of the mother in Saint Joseph's Hospital of particular individual intended with the name used.
the City of Manila, where she was cared for during
confinement. It is contended, however, in the present case that the
words of description used in the writings before us are not
legally sufficient to identify the child now suing as Ismael shall be indubitable.
Loanco. This contention is not, in our opinion, well
founded. The words of recognition contained in the note to The second question that presents itself in this case is
the padre are not capable of two constructions. They refer whether the trial court erred in holding that Ismael Loanco
to a baby then conceived which was expected to be born had been in the uninterrupted possession of the status of
in June and which would thereafter be presented for a natural child, justified by the conduct of the father
christening. The baby came, and though it was in the end himself, and that as a consequence, the defendant in this
given the name of Ismael Loanco instead of Cesar Syquia, case should be compelled to acknowledge the said Ismael
jr., its identity as the child which the defendant intended Loanco, under No. 2 of article 135 of the Civil Code. The
to acknowledge is clear. Any doubt that might arise on this facts already stated are sufficient, in our opinion, to justify
point is removed by the letters Exhibits F, G, H, and J. In the conclusion of the trial court on this point, and we may
these letters the defendant makes repeated reference to add here that our conclusion upon the first branch of the
junior as the baby which Antonia, to whom the letters were case that the defendant had acknowledged this child in the
addressed, was then carrying in her womb, and the writer writings above referred to must be taken in connection
urged Antonia to eat with good appetite in order that with the facts found by the court upon the second point.
junior might be vigorous. In the last letter (Exhibit J) It is undeniable that from the birth of this child the
written only a few days before the birth of the child, the defendant supplied a home for it and the mother, in which
defendant urged her to take good care of herself and of they lived together with the defendant. This situation
junior also. continued for about a year, and until Antonia became
enceinte a second time, when the idea entered the
It seems to us that the only legal question that can here defendant's head of abandoning her. The law fixes no
arise as to the sufficiency of the acknowledgment is period during which a child must be in the continuous
whether the acknowledgment contemplated in subsection possession of the status of a natural child; and the period
1 of article 135 of the Civil Code must be made in a single in this case was long enough to evince the father's
document or may be made in more than one document, of resolution to concede the status. The circumstance that he
indubitable authenticity, written by the recognizing father. abandoned the mother and child shortly before this action
Upon this point we are of the opinion that the recognition was started is unimportant. The word "continuous" in
can be made out by putting together the admissions of subsection 2 of article 135 of the Civil Code does not mean
more than one document, supplementing the admission that the concession of status shall continue forever, but
made in one letter by an admission or admissions made in only that it shall not be of an intermittent character while
another. In the case before us the admission of paternity it continues.
is contained in the note to the padre and the other letters
suffice to connect that admission with the child then being What has been said disposes of the principal feature of the
carried by Antonia L. de Jesus. There is no requirement in defendant's appeal. With respect to the appeal of the
the law that the writing shall be addressed to one, or any plaintiffs, we are of the opinion that the trial court was
particular individual. It is merely required that the writing right in refusing to give damages to the plaintiff, Antonia
Loanco, for supposed breach of promise to marry. Such J.
promise is not satisfactorily proved, and we may add that
the action for breach of promise to marry has not standing Exhibit C, which is the handwriting of and signed by the
in the civil law, apart from the right to recover money or defendant-appellant Cesar Syquia, reads as follows:
property advanced by the plaintiff upon the faith of such
promise. This case exhibits none of the features necessary "Sabado, 1.30 p. m. 14 febrero, 1931
to maintain such an action. Furthermore, there is no proof "REV. PADRE:
upon which a judgment could be based requiring the
defendant to recognize the second baby, Pacita Loanco. "La criatura que vendra el junio es mio y que yo quisiera
mi nombre que se de a la criatura.
Finally, we see no necessity or propriety in modifying the
judgment as to the amount of the maintenance which the "(Fdo.) CESAR SYQUIA"
trial court allowed to Ismael Loanco. And in this connection
we merely point out that, as conditions change, the Court Exhibits F, G, H, and J, which are letters written by the
of First Instance will have jurisdiction to modify the order said defendant-appellant Cesar Syquia to plaintiff-appellee
as to the amount of the pension as circumstances will Antonia L. de Jesus prior to the birth of the child contain
require. the following expressions:

The judgment appealed from is in all respects affirmed, Exhibit F, Feb. 18, 1931: "No hagas nada malo; ni
without costs. So ordered. manches mi nombre y el de junior tambien no lo manches.
Acuerdate muy bien Toni que es por ti y por junior volvere
Malcolm, Abad Santos, Hull, Vickers and Butte, JJ., concur. alli pronto. . . ."

Separate Opinions Exhibit G, Feb. 24, 1931: "Toni por favor cuida bien a
VILLA-REAL, J., dissenting: junior eh?

The majority opinion is predicated on two grounds: First, Exhibit H, March 25, 1931: "Toni, cuida tu bien a junior y
that the defendant-appellant Cesar Syquia has expressly cuidate bien, y come tu mucho. . . ."
acknowledged his paternity of the child Ismael Loanco in
an indubitable writing of his; and secondly, that said child Exhibit J, June 1, 1931: "Cuidate bien y junior tambien . .
has enjoyed the uninterrupted possession of the status of ."
a natural son of said defendant-appellant Cesar Syquia,
justified by his direct acts, as required by article 135 of Article 135, number 1, provides as follows:
the Civil Code.
"ART. 135. The father may be compelled to acknowledge
The first conclusion is drawn from Exhibits C, F, G, H and his natural child in the following cases:
"1. When an indisputable paper written by him, expressly xxx xxx xxx
acknowledging his paternity, is in existence."
"En cuanto al otro requisito de ser expreso el
Manresa (Codigo Civil, Vol. 1, page 596, 4th ed.), reconocimiento, tengase presente que no basta hacerlo
commenting on said article, says: por incidencia; es indispensable que se consigne en el
escrito la voluntad indubitada, clara y terminante del
"Con arreglo al articulo que comentamos, no puede haber padre, de reconocer por suyo al hijo, deliberadamente
cuestion acerca de si es posible admitir por otro medio la expresada con este fin, como se ordena en la base 5.a
prueba de la paternidad natural. Entendemos que no, antes citada, de las aprobadas por la Ley de 11 de mayo
porque el articulo es terminante y la intencion de la ley de 1888; de suerte que el escrito, aunque contenga otros
mas terminante aun. Se establecio en la base 5.a que 'no particulares, como sucede en los testamentos, ha de tener
se admitira investigacion de la paternidad sino en los casos por objeto el reconocimiento deliberado y expeso del hijo
de delito, o cuando exista escrito del padre en el que natural. No llena, pues, ese objeto la manifestacion que
conste su voluntad indubitada de reconocer por suyo al incidentalmente haga el padre de ser hijo natural suyo la
hijo, deliberadamente expresada con ese fin, o cuando persona a quien se refiera, y mucho menos el dar a una
medie posesion de estado, y esto mismo es lo que se persona el titulo y tratamiento de hijo en cartas familiares.
ordena en el presente articulo. Sin embargo, en cada caso decidiran los tribunales, y
cuando el escrito por si solo no reconozca de un modo
"No puede, pues, prosperar la demanda para obligar al suficientemente expresivo la paternidad, servira de base
padre al reconocimiento de un hijo natural, aunque solo para acreditar, en union con otros datos, la posesion
se limite a pedir alimentos, si no se funda en el constante del estado del hijo a los efectos de este articulo,
reconocimiento expreso del padre hecho por escrito, en la y con arreglo a su numero 2.º"
posesion constante de estado de hijo natural o en
sentencia firme recaida en causa por delito de violacion, Let it first be noted that the law prohibits the investigation
estupro o rapto. El escrito y la sentencia habran de of paternity (Borres and Barza vs. Municipality of Panay,
acompañarse a la demanda, y no puede admitirse otra 442 Phil., 643; Donado vs. Menendez Donado, 55 Phil.,
prueba que la conducente a justificar que el escrito es 861). The only exceptions to this rule are those
indubitadamente del padre que en el reconozca su established in article 135 of the Civil Code quoted above,
paternidad, o la relative a los actos directos del mismo the first of which is that the father may be compelled to
padre o de su familia, que demuestren la posesion acknowledge his paternity, "When an indubitable writing
continua de dicho estado. Para la prueba de estos dos of his exists in which he expressly acknowledges his
hechos podran utilizarse todos los medios que permite la paternity." The writing that is required by said provision
Ley de Enjuiciamiento Civil, debiendo el juez rechazar la must be complete in itself and by itself, and must contain
que por cualquier otro concepto se dirija a la investigacion all the statements that are necessary to constitute a full
de la paternidad. and clear acknowledgment by a father of his paternity of
a child, the general prohibition to investigate paternity "2. When the child has been in the uninterrupted
would be violated. possession of the status of a natural child of the defendant
father, justified by the conduct of the father himself or that
By the mere reading of all said letters, the one addressed of his family."
to a priest and the others to the herein plaintiff-appellee,
Antonia L. de Jesus, the reader cannot ascertain which is The majority decision bases its conclusion on the second
the "creature that is coming in June", which the point on Exhibits C, F, G, H and J and the following facts,
defendant-appellant, Cesar Syquia, says in the said letter as found by the lower court in its decision:
addressed to the priest is his, nor who is the "junior" that
he recommends to said Antonia L. de Jesus to take good "Cuando la demandante Antonia L. de Jesus estaba para
care of, as there is nothing in anyone of said letters from dar a luz, el demandado Cesar Syquia llamo a su
which it may be inferred that Antonia L. de Jesus was comprovinciano Dr. Crescenciano Talavera, medico que
enceinte at the time, that the "junior" was the being she entonces ejercia su profesion en la Ciudad de Manila, para
was carrying in her womb, and that it was the "creature que asistiera a aquella en su parto y a ese efecto llevo a
that it coming in June." To connect all these facts it was la demandante Antonia L. de Jesus acompañado del Dr.
necessary to prove that Cesar Syquia had had illicit Talavera al Hospital San Jose, de esta Ciudad, donde ella
relations with Antonia L. de Jesus, that as a result of such dio a luz el 17 de junio de 1931 asistida por dicho Dr.
relations the woman became pregnant, and that she gave Talavera, que firmo el certificado de nacimiento Exhibit E.
birth to a boy in June 1931. All this certainly constitutes
an investigation of the paternity of Cesar Syquia of said "Despues del nacimiento del demandante Ismael Loanco,
child outside of the documents, which is prohibited by law. el demandado estuvo viviendo con este y con la
demandante Antonia L. de Jesus en la case No. 551 de la
Either taken alone therefore, or in connection with Exhibits Calle Camarines, Manila, entregando a dicha demandante
F, G, H, and J, Exhibit C is insufficient to constitute a el dinero para los gastos de casa y el pago del consumo
"indubitable writing of Cesar Syquia, in which he expressly de gas y luz electrica, habiendo firmado el contrato para
acknowledges his paternity of the child Ismael Loanco," as el suministro del fluido electrico en dicha case."
required by number 1 of article 135 of the Civil Code.
Exhibits C, F, G, H, and J, are inadmissible in evidence for
As to the second ground of the decision of the majority, the purpose of showing that Ismael Loanco has enjoyed
number 2 of article 135 of the Civil Code provides: the continuous possession of the status of a natural child,
because being of prior date to the birth of said child they
"ART. 135. The father may be compelled to acknowledge can not be considered as direct acts of Cesar Syquia
his natural child in the following cases: showing possession of the status of natural child, as no
human being can enjoy such possession until he be born
xxx xxx xxx with legal capacity for acquiring civil rights (Infante vs.
Figueras, 4 Phil., 738; Granados vs. Leynes, G. R. No.
31224, promulgated September 9, 1929, not reported). recognition must appear either in writing, made by the
father, or it must appear in acts which show that the son
It must also be stated that Cesar Syquia refused to allow has possessed continuously the status of a natural child.
his name to be given to the child Ismael when it was No recognition by the father of the child which comes short
baptized, so that the name of its mother, Loanco, had to of the requirements of these two paragraphs is sufficient.
be given to it. It must appear that it was the intention of the father to so
recognize the child as to give him that status, and that the
The facts which were found by the court below to have acts performed by him were done with that intention."
been proved by the testimony of the witnesses during the
trial, are not sufficient to constitute the uninterrupted Manresa (Codigo Civil, Vol. 1, page 602, 4th ed.) in citing
possession of the status of Ismael Loanco as natural child some decisions of the Supreme Court of Spain says:
of said Cesar Syquia, in the light of the following
authorities: "En la sentencia de 5 de julio de 1906 declarase que para
justificar la posesion de estado de hijo natural se requiere
In the case of Buenaventura vs. Urbano (5 Phil., 1, 9), this que los actos sean de tal naturaleza que releven, a la vez
court said: que el convencimiento de la paternidad, la voluntad
ostensible de tener y tratar al hijo como tal en las
". . . . ourselves to the acts proved to have been performed relaciones sociales y de la vida, y esto no accidentalmente,
by Don Telesforo, we find that he visited the mother of the sino continuadamente, porque en tal supuesto los actos
plaintiff; that he paid money for her support; that he paid tienen el mismo valor que el reconocimiento expreso.
money for the support of the plaintiff; that he told one
witness that the plaintiff was his son; that the plaintiff "En el mismo criterio restrictivo se inspira la de 12 de
called him 'Papa,' and that Don Telesforo answered to this octubre de 1907, que estima que el hecho de que dos
designation; that when the plaintiff visited Don Telesforo nodrizas criaron a otros tantos niños, sufragando el gasto
he kissed his hand; that Don Telesforo wrote letter to him; el demandado, quien ademas iba a casa de la
that he paid his fees for instruction in school, and secured demandante, los besaba, los llamaba hijos y encargaba
him a position in a commercial house. para los mismos el mayor cuidado; el de que subvenia a
las necesidades de la madre y de los seis hijos que la
xxx xxx xxx nacieron, el primero de los cuales se llamaba como el
padre; y el de que los porteros de la casa donde vivio la
"All these facts taken together are not sufficient to show actora sabian que el finado visitaba a esta, se lamentaba
that plaintiff possessed continuously the status of a de la much familia que tenia y era tenido en el concepto
natural child. They may have a tendency to show that Don publico como padre de los menores, no son suficentes para
Telesforo was the father of the child, but that is not fundar la declaracion de paternidad, pues no es legal
sufficient. It is not sufficient that the father recognize the confundir actos que puedan revelar mas o menos la
child as his. By the express terms of article 135 that presuncion o convencimiento en que una persona este de
su paternidad con relacion a hijos naturales, con los que Fragante, as applicant for a certificate of public
demuestren su proposito de poner a estos hijos en la convenience to install, maintain and operate an ice plant
posesion de tal estado." in San Juan, Rizal, whereby said commission held that the
evidence therein showed that the public interest and
It will thus be seen from the foregoing discussion and convenience will be promoted in a proper and suitable
authorities that the herein defendant-appellant Cesar manner "by authorizing the operation and maintenance of
Syquia cannot be compelled to acknowledge the child another ice plant of two and one-half (2-1/2) tons in the
Ismael Loanco as his natural son because there exists not municipality of San Juan; that the original applicant Pedro
an indubitable writing of his in which he expressly 0. Fragante was a Filipino citizen at the time of his death;
acknowledges his paternity of said child, and because the and that his intestate estate is financially capable of
said child has not enjoyed the uninterrupted possession of maintaining the proposed service". The commission,
the status of a natural child of the said defendant- therefore, overruled the opposition filed in the case and
appellant, justified by his own conduct or that of his family, ordered "that under the provisions of section 15 of
as required by article 135 of the Civil Code. Commonwealth Act No. 146, as amended, a certificate of
public convenience be issued to the Intestate Estate of the
The decision appealed from should, therefore, be reversed deceased Pedro Fragante, authorizing said Intestate
and the complaint dismissed. Estate through its Special or Judicial Administrator,
appointed by the proper court of competent jurisdiction,
Avanceña, C.J. and Imperial, J., concur. to maintain and operate an ice plant with a daily
productive capacity of two and one half tons (2-1/2) in the
Municipality of San Juan and to sell the ice produced from
said plant in the said Municipality of San Juan and in the
Municipality of Mandaluyong, Rizal, and in Quezon City",
ANGEL T. LIMJOCO, petitioner, vs. INTESTATE subject to the conditions therein set forth in detail
(petitioner's brief, pp. 33-34).
ESTATE OF PEDRO O. FRAGANTE, deceased,
respondent. Petitioner makes four assignments of error in his brief as
G.R. No. L-770 | 1948-04-27
follows:

DECIS ION "1. The decision of the Public Service Commission is not in
accordance with law.
HILADO, J:
"2. The decision of the Public Service Commission is not
Under date of May 21, 1946, the Public Service reasonably supported by evidence.
Commission, through Deputy Commissioner Fidel Ibañez,
rendered its decision in case No. 4572 of Pedro O. "3. The Public Service Commission erred in not giving
petitioner and the Ice and Cold Storage Industries of the denied the application, although under the facts of the
Philippines, Inc., as existing operators, a reasonable case, the commission granted the application in view of
opportunity to meet the increased demand. the financial ability of the estate to maintain and operate
the ice plant. Petitioner, in his memorandum of March 19,
"4. The decision of the Public Service Commission is an 1947, admits (page 3) that a certificate of public
unwarranted departure from its announced policy with convenience once granted "as a rule, should descend to
respect to the establishment and operation of ice plant." his estate as an asset". Such certificate would certainly be
(Pp. 1-2, petitioner's brief.) property, and the right to acquire such a certificate, by
complying with the requisites of the law, belonged to the
In his argument petitioner contends that it was error on decedent in his lifetime, and survived to his estate and
the part of the commission to allow the substitution of the judicial administrator after his death.
legal representative of the estate of Pedro O. Fragante for
the latter as party applicant in the case then pending If Pedro O. Fragante had in his lifetime secured an option
before the commission, and in subsequently granting to to buy a piece of land and during the life of the option he
said estate the certificate applied for, which is said to be died, if the option had been given him in the ordinary
in contravention of law. course of business and not out of special consideration for
his person, there would be no doubt that said option and
If Pedro O. Fragante had not died, there can be no the right to exercise it would have survived to his estate
question that he would have had the right to prosecute his and legal representatives. In such a case there would also
application before the commission to its final conclusion. be the possibility of failure to acquire the property should
No one would have denied him that right. As declared by he or his estate or legal representative fail to comply with
the commission in its decision, he had invested in the ice the conditions of the option. In the case at bar Pedro O.
plant in question P35,000, and from what the commission Fragante's undoubted right to apply for and acquire the
said regarding his other properties and business, he would desired certificate of public convenience - the evidence
certainly have been financially able to maintain and established that the public needed the ice plant - was
operate said plant had he not died. His transportation under the law conditioned only upon the requisite
business alone was netting him about P1,440 monthly. He citizenship and economic ability to maintain and operate
was a Filipino citizen and continued to be such till his the service. Of course, such right to acquire or obtain such
demise. The commission declared in its decision, in view certificate of public convenience was subject to failure to
of the evidence before it, that his estate was financially secure its objective through nonfulfillment of the legal
able to maintain and operate the ice plant. The aforesaid conditions, but the situation here is no different from the
right of Pedro O. Fragante to prosecute said application to legal standpoint from that of the option in the illustration
its final conclusion was one which by its nature did not just given.
lapse through his death. Hence, it constitutes a part of the
assets of his estate, for such a right was property despite Rule 88, section 2, provides that the executor or
the possibility that in the end the commission might have administrator may bring or defend actions, among other
cases, for the protection of the property or rights of the in the prosecution of an unfinished proceeding upon an
deceased which survive, and it says that such actions may application for a certificate of public convenience of the
be brought or defended "in the right of the deceased". deceased before the Public Service Commission, it is but
logical that the legal representative be empowered and
Rule 82, section 1, paragraph (a), mentions among the entitled in behalf of the estate to make the right effective
duties of the executor or administrator, the making of an in that proceeding.
inventory of all goods, chattels, rights, credits, and estate
of the deceased which shall come to his possession or Manresa (Vol. III, 6th ed., p. 11) says that No. 10 of article
knowledge, or to the possession of any other person for 334 and article 336 of the Civil Code, respectively,
him. consider as immovable and movable things rights which
are not material. The same eminent commentator says in
In his commentaries on the Rules of Court (Volume II, 2nd the cited volume (p. 45) that article 336 of the Civil Code
ed., pages 366, 367), the present Chief Justice of this has been deficiently drafted in that it is not sufficiently
Court draws the following conclusion from the decisions expressive of all incorporeal rights which are also property
cited by him: for juridical purposes.

"Therefore, unless otherwise expressly provided by law, Corpus Juris (Vol. 50, p. 737) states that in the broad
any action affecting the property or rights (underscoring sense of the term, property includes, among other things,
supplied) of a deceased person which may be brought by "an option", and "the certificate of the railroad commission
or against him if he were alive, may likewise be instituted permitting the operation of a bus line", and on page 748
and prosecuted by or against the administrator, unless the of the same volume we read:
action is for recovery of money, debt or interest thereon,
or unless, by its very nature, it cannot survive, because "However, these terms (real property, as estate or
death extinguishes the right . . .". interest) have also been declared to include every species
of title, inchoate or complete, and embrace rights which
It is true that a proceeding upon an application for a lie in contract, whether executory or executed."
certificate of public convenience before the Public Service
Commission is not an "action". But the foregoing Another important question raised by petitioner is whether
provisions and citations go to prove that the decedent's the estate of Pedro O. Fragante is a "person" within the
rights which by their nature are not extinguished by death meaning of the Public Service Act.
go to make up a part and parcel of the assets of his estate
which, being placed under the control and management of Words and Phrases, First Series, (Vol. 6, p. 5325), states
the executor or administrator, can not be exercised but by the following doctrine in the jurisdiction of the State of
him in representation of the estate for the benefit of the Indiana:
creditors, devisees, or legatees, if any, and the heirs of
the decedent. And if the right involved happens to consist
"As the estate of a decedent is in law regarded as a person, defendant as the estate of the deceased person, naming
a forgery committed after the death of the man whose him. Ginn vs. Collins, 43 Ind. 271. Unless we accept this
name purports to be signed to the instrument may be definition as correct, there would be a failure of justice in
prosecuted as with the intent to defraud the estate. cases where, as here, the forgery is committed after the
Billings vs. State, 107 Ind., 54, 55, 6 N. E. 914, 7 N. E. death of the person whose name is forged; and this is a
763, 57 Am. Rep. 77." result to be avoided if it can be done consistent with
principle. We perceive no difficulty in avoiding such a
The Supreme Court of Indiana in the decision cited above result; for, to our minds, it seems reasonable that the
had before it a case of forgery committed after the death estate of a decedent should be regarded as an artificial
of one Morgan for the purpose of defrauding his estate. person. It is the creation of law for the purpose of enabling
The objection was urged that the information did not aver a disposition of the assets to be properly made, and,
that the forgery was committed with the intent to defraud although natural persons as heirs, devisees, or creditors,
any person. The Court, per Elliott, J., disposed of this have an interest in the property, the artificial creature is a
objection as follows: distinct legal entity. The interest which natural persons
have in it is not complete until there has been a due
". . . The reason advanced in support of this proposition is administration; and one who forges the name of the
that the law does not regard the estate of a decedent as a decedent to an instrument purporting to be a promissory
person. This intention (contention) cannot prevail. The note must be regarded as having intended to defraud the
estate of a decedent is a person in legal contemplation. estate of the decedent, and not the natural persons having
'The word "person", says Mr. Abbot, 'in its legal diverse interests in it, since he cannot be presumed to
signification, is a generic term, and includes artificial as have known who those persons were, or what was the
well as natural persons,' 2 Abb. Dict. 271; Douglas vs. nature of their respective interests. The fraudulent intent
Pacific, etc., Co., 4 Cal. 304; Planters', etc., Bank vs. is against the artificial person, - the estate, - and not the
Andrews, 8 Port (Ala.) 404. It is said in another work that natural persons who have direct or contingent interests in
'persons are of two kinds: natural and artificial. A natural it." (107 Ind. 54, 55, 6 N. E. 914-915.)
person is a human being. Artificial persons include (1) a
collection or succession of natural persons forming a In the instant case there would also be a failure of justice
corporation; (2) a collection of property to which the law unless the estate of Pedro O. Fragante is considered a
attributes the capacity of having rights and duties. The "person", for the quashing of the proceedings for no other
latter class of artificial persons is recognized only to a reason than his death would entail prejudicial results to
limited extent in our law. Examples are the estate of a his investment amounting to P35,000.00 as found by the
bankrupt or deceased person.' 2 Rapalje & L. Law Dict. commission, not counting the expenses and
954. Our own cases inferentially recognize the correctness disbursements which the proceeding can be presumed to
of the definition given by the authors from whom we have have occasioned him during his lifetime, let alone those
quoted, for they declare that it is sufficient, in pleading a defrayed by the estate thereafter. In this jurisdiction there
claim against a decedent's estate, to designate the are ample precedents to show that the estate of a
deceased person is also considered as having legal principle that the heirs succeeded to the rights and
personality independent of the heirs. Among the most obligations of the decedent. Under the present legal
recent cases maybe mentioned that of "Estate of Mota vs. system, such rights and obligations as survive after death
Concepcion, 56 Phil., 712, 717, wherein the principal have to be exercised and fulfilled only by the estate of the
plaintiff was the estate of the deceased Lazaro Mota, and deceased. And if the same legal fiction were not indulged,
this Court gave judgment in favor of said estate along with there would be no juridical basis for the estate,
the other plaintiffs in these words: represented by the executor or administrator, to exercise
those rights and to fulfill those obligations of the deceased.
". . . the judgment appealed from must be affirmed so far The reason and purpose for indulging the fiction is identical
as it holds that defendants Concepcion and Whitaker are and the same in both cases. This is why according to the
indebted to the plaintiffs in the amount of P245,804.69 . . Supreme Court of Indiana in Billings vs. State, supra,
.." citing 2 Rapalje & L. Dictionary, 954, among the artificial
persons recognized by law figures "a collection of property
Under the regime of the Civil Code and before the to which the law attributes the capacity of having rights
enactment of the Code of Civil Procedure, the heirs of a and duties", as for instance, the estate of a bankrupt or
deceased person were considered in contemplation of law deceased person.
as the continuation of his personality by virtue of the
provision of article 661 of the first Code that the heirs Petitioner raises the decisive question of whether or not
succeed to all the rights and obligations of the decedent the estate of Pedro O. Fragante can be considered a
by the mere fact of his death. It was so held by this Court "citizen of the Philippines" within the meaning of section
in Barrios vs. Dolor, 2 Phil., 44, 46. However, after the 16 of the Public Service Act, as amended, particularly the
enactment of the Code of Civil Procedure, article 661 of proviso thereof expressly and categorically limiting the
the Civil Code was abrogated, as held in Suiliong & Co. vs. power of the commission to issue certificates of public
Chio-Taysan, 12 Phil., 13 22. In that case, as well as in convenience or certificates of public convenience and
many others decided by this Court after the innovations necessity "only to citizens of the Philippines or of the
introduced by the Code of Civil Procedure in the matter of United States or to corporations, co-partnerships,
estates of deceased persons, it has been the constant associations, or joint-stock companies constituted and
doctrine that it is the estate or the mass of property, rights organized under the laws of the Philippines", and the
and assets left by the decedent, instead of the heirs further proviso that sixty per centum of the stock or paid-
directly, that becomes vested and charged with his rights up capital of such entities must belong entirely to citizens
and obligations which survive after his demise. of the Philippines or of the United States.

The heirs were formerly considered as the continuation of Within the philosophy of the present legal system, the
the decedent's personality simply by legal fiction, for they underlying reason for the legal fiction by which, for certain
might not be even of his flesh and blood - the reason was purposes, the estate of a deceased person is considered a
one in the nature of a legal exigency derived from the "person" is the avoidance of injustice or prejudice resulting
from the impossibility of exercising such legal rights and instant case, consisting in the prosecution of said
fulfilling such legal obligations of the decedent as survived application to its final conclusion. As stated above, an
after his death unless the fiction is indulged. Substantially injustice would ensue from the opposite course.
the same reason is assigned to support the same rule in
the jurisdiction of the State of Indiana, as announced in How about the point of citizenship? If by legal fiction his
Billings vs. State, supra, when the Supreme Court of said personality is considered extended so that any debts or
State said: obligations left by, and surviving, him may be paid, and
any surviving rights may be exercised for the benefit of his
". . . It seems reasonable that the estate of a decedent creditors and heirs, respectively, we find no sound and
should be regarded as an artificial person. It is the creation cogent reason for denying the application of the same
of law for the purpose of enabling a disposition of the fiction to his citizenship, and for not considering it as
assets to be properly made . . .." likewise extended for the purposes of the aforesaid
unfinished proceeding before the Public Service
Within the framework and principles of the constitution Commission. The outcome of said proceeding, if
itself, to cite just one example, under the bill of rights it successful, would in the end inure to the benefit of the
seems clear that while the civil rights guaranteed therein same creditors and the heirs. Even in that event petitioner
in the majority of cases relate to natural persons, the term could not allege any prejudice in the legal sense, any more
"person" used in section 1 (1) and (2) must be deemed to than he could have done if Fragante had lived longer and
include artificial or juridical persons, for otherwise these obtained the desired certificate. The fiction of such
latter would be without the constitutional guarantee extension of his citizenship is grounded upon the same
against being deprived of property without due process of principle, and motivated by the same reason, as the fiction
law, or the immunity from unreasonable searches and of the extension of his personality. The fiction is made
seizures. We take it that it was the intendment of the necessary to avoid the injustice of subjecting his estate,
framers to include artificial or juridical, no less than creditors and heirs, solely by reason of his death, to the
natural, persons in these constitutional immunities and in loss of the investment amounting to P35,000, which he
others of similar nature. Among these artificial or juridical had already made in the ice plant, not counting the other
persons figure estates of deceased persons. Hence, we expenses occasioned by the instant proceeding, from the
hold that within the framework of the constitution, the Public Service Commission to this Court.
estate of Pedro O. Fragante should be considered an
artificial or juridical person for the purposes of the We can perceive no valid reason for holding that within the
settlement and distribution of his estate which, of course, intent of the Constitution (Article IV), its provisions on
include the exercise during the judicial administration Philippine citizenship exclude the legal principle of
thereof of those rights and the fulfillment of those extension above adverted to. If for reasons already stated
obligations of his which survived after his death. One of our law indulges the fiction of extension of personality, if
those rights was the one involved in his pending for such reasons the estate of Pedro O. Fragante should
application before the Public Service Commission in the be considered an artificial or juridical person herein, we
can find no justification for refusing to declare a like fiction Separate Opinions
as to the extension of his citizenship for the purposes of
this proceeding. PERFECTO, J., dissenting:

Pedro O. Fragante was a Filipino citizen, and as such, if he Commonwealth Act No. 146 reserves to Filipino citizens
had lived, in view of the evidence of record, he would have the right to obtain a certificate of public convenience to
obtained from the commission the certificate for which he operate an ice plant in San Juan, Rizal. The limitation is in
was applying. The situation has suffered but one change, accordance with section 8 of Article XIV of the Constitution
and that is, his death. His estate was that of a Filipino which provides.
citizen. And its economic ability to appropriately and
adequately operate and maintain the service of an ice "No franchise, certificate, or any other form of
plant was the same that it received from the decedent authorization for the operation of a public utility shall be
himself. In the absence of a contrary showing, which does granted except to citizens of the Philippines or to
not exist here, his heirs may be assumed to be also Filipino corporations or other entities organized under the laws of
citizens; and if they are not, there is the simple expedient the Philippines, sixty per centum of the capital of which is
of revoking the certificate or enjoining them from owned by citizens of the Philippines, nor shall such
inheriting it. franchise, certificate, or authorization be exclusive in
character or for a longer period than fifty years. No
Upon the whole, we are of opinion that for the purposes of franchise or right shall be granted to any individual, firm,
the prosecution of said case No. 4572 of the Public Service or corporation, except under the condition that it shall be
Commission to its final conclusion, both the personality subject to amendment, alteration, or repeal by the
and citizenship of Pedro O. Fragante must be deemed Congress when the public interest so requires."
extended, within the meaning and intent of the Public
Service Act, as amended, in harmony with the The main question in this case is whether the estate of
constitution: it is so adjudged and decreed. Pedro O. Fragante fulfills the citizenship requirement. To
our mind, the question can be restated by asking whether
Decision affirmed, without costs. So ordered. the heirs of Pedro O. Fragante fulfill the citizenship
requirement of the law.
Moran, C. J., Paras, Pablo, Bengzon, Briones, Padilla and
Tuason, JJ., concur. The estate is an abstract entity. As such, its legal value
depends on what it represents. It is a device by which the
PARAS, J.: law gives a kind of personality and unity to undetermined
tangible persons, the heirs. They inherit and replace the
I hereby certify that Mr. Justice Feria voted with the deceased at the very moment of his death. As there are
majority. procedural requisites for their identification and
determination that need time for their compliance, a legal
fiction has been devised to represent them. That legal DIONISIO DUMLAO, in his own behalf and in his
fiction is the estate, a liquid condition in process of
solidification. capacity as Administrator of the Testate Estate of
the late Pedro Oria; FAUSTA DUMLAO, AMADO
The estate, therefore, has only a representative value.
What the law calls estate is, as a matter of fact, intended DUMLAO, and BENJAMIN DUMLAO, plaintiffs-
to designate the heirs of the deceased. The question, appellants, vs. QUALITY PLASTIC PRODUCTS, INC.,
therefore, in this case, boils down to the citizenship of the
heirs of Fragante. defendant-appellee.
G.R. No. L-27956 | 1976-04-30
There is nothing in the record to show conclusively the
citizenship of the heirs of Fragante. If they are Filipino DECISION
citizens, the action taken by the Public Service
Commission should be affirmed. If they are not, it should AQUINO, J:
be reversed.
On February 28, 1962 the Court of First Instance of Pangasinan in
Petitioner alleges that the estate is just a front or dummy Civil Case No. T-662 rendered a judgment ordering defendants
for aliens to go around the citizenship constitutional Vicente Soliven, Pedro Oria, Santiago Laurencio, Marcelino
Sumalbag and Juana Darang to pay solidarily Quality Plastic
provision. It is alleged that Gaw Suy, the special
Products, Inc. the sum of P3,667.03 plus the legal rate of interest
administrator of the estate, is an alien.
from November, 1958. The lower court directed that in case the
defendants failed to pay the said amount before its decision became
We are of opinion that the citizenship of the heirs of
final, then Quality Plastic Products, Inc. "is hereby authorized to
Fragante should be determined by the Commission upon foreclose the bond, Exhibit A, in accordance with law, for the
evidence that the party should present. It should also satisfaction of the judgment." (Under that bond the four sureties
determine the dummy question raised by petitioner. bound themselves to answer solidarily for the obligations of the
principal, Vicente Soliven and certain real properties of the sureties
We are of opinion and so vote that the decision of the were "given as security for" their undertaking).
Public Service Commission of May 21, 1946, be set aside
and that the Commission be instructed to receive evidence Upon defendants' failure to pay the amount of the judgment and
on the above factual questions and render a new decision after the decision had become final, the lower court, on motion of
accordingly. Quality Plastic Products, Inc., ordered the "foreclosure" of the surety
bond and the sale at public auction of the land of Pedro Oria which
he had given as security under the bond. Oria's land, which was
covered by Original Certificate of Title No. 28732 and has an area of
nine and six-tenths hectares, was levied upon and sold by the sheriff
at public auction on September 24, 1962. The sale was confirmed by
the lower court in its order of November 20, 1962. of Oria and that the judgment was valid as to him. From that
decision the plaintiffs appealed.
It turned out that Oria died on April 23, 1959 or long before June 13,
1960 when the action was filed. Oria's death was not known to The four assignments of error of appellants Dumlao may be boiled
Quality Plastic Products, Inc. Nor were the representatives of down to the issue as to the validity of the lower court's judgment
Quality Plastic Products, Inc. aware that in the same Tayug court against the deceased Pedro Oria who, being already in the other
Special Proceeding No. T-212, Testate Estate of the deceased Pedro world, was never served with summons.
Oria, was pending.
There is no difficulty in resolving that issue. Since no jurisdiction
The summons and copies of the complaint for the five defendants in was acquired over Oria, the judgment against him is a patent nullity
Civil Case No. T-662 had been personally served on June 24, 1960 (Ang Lam vs. Rosillosa and Santiago, 86 Phil. 447; Asuncion vs.
by a deputy sheriff on Soliven, the principal in the bond, who Nieto, 4 Phil. 97; Gorostiaga vs. Sarte, 68 Phil. 4).
acknowledged such service by signing on the back of the original
summons in his behalf and again signing for his co-defendants. As far as Oria was concerned, the lower court's judgment against
him in Civil Case No. T-662 is void for lack of jurisdiction over his
On March 1, 1963 Dionisio, Fausta, Amado and Benjamin, all person. He was not, and he could not have been, validly served with
surnamed Dumlao and all testamentary heirs in Oria's duly summons. He had no more civil personality. His juridical capacity,
probated will, sued Quality Plastic Products, Inc., also in the Tayug which is the fitness to be the subject of legal relations, was lost
court for the annulment of the judgment against Oria and the through death. (Arts. 37 and 42, Civil Code).
execution against his land (Dionisio Dumlao also sued in his
capacity as administrator of Oria's testate estate). The lower court erred in ruling that since Soliven's counsel also
appeared as counsel for Oria, there was a voluntary appearance
The ground for annulment was lack of jurisdiction over the person which enabled the court to acquire jurisdiction over Oria, as
of the deceased Oria (Civil Case No. T-873). It was only when Quality contemplated in section 23, Rule 14 of the Revised Rules of Court.
Plastic Products, Inc. received the summons in Civil Case No. T-873 Soliven's counsel could not have validly appeared for a dead
that it learned that Oria was already dead at the time the prior case, codefendant. Estoppel has no application to this case.
Civil Case No. T-662, was filed.
But from the fact that appellants Dumlao had to sue Quality Plastic
Quality Plastic Products, Inc. in its answer alleged that Oria's heirs Products, Inc. in order to annul the judgment against Oria, it does
were aware of the suit against Soliven and his sureties and that the not follow that they are entitled to claim attorney's fees against that
said heirs were estopped to question the court's jurisdiction over corporation. The parties herein agreed in their stipulation of facts
Oria. that Quality Plastic Products, Inc. was unaware of Oria's death.
Appellants Dumlao in effect conceded that the appellee acted in
After hearing the lower court held that it acquired jurisdiction over good faith in joining Oria as a codefendant.
Soliven and the other defendants in Civil Case No. T-662 by reason
of their voluntary appearance. It reasoned out that Soliven acted in WHEREFORE, the lower court' decision is reversed and set aside. Its
bad faith because he did not apprise the court that Oria was dead. It judgment in Civil Case No. T-662 against Pedro Oria is declared void
specifically ruled that "it had acquired jurisdiction over the person" for lack of jurisdiction. The execution sale of Oria's land covered by
OCT No. 28732 is also void. No costs. proceeding with the Habeas Corpus case (Sp. Proc. No.
88-55, RTC, Branch 20, Cagayan de Oro City), * the
SO ORDERED. respondent Sheriff from enforcing and implementing the
writ and orders of the respondent Judge dated 28, 29, and
Fernando (Actg. C.J.), Barredo, (Actg. Chairman), Antonio and 30 September 1988, and to declare said writ and orders
Concepcion, Jr., JJ., concur. as null and void. In a resolution issued on 11 October
1988, this Court required comment from the respondents
on the petition but denied the application for a temporary
restraining order.
TOMAS EUGENIO, SR., petitioner, vs. HON.
ALEJANDRO M. VELEZ, Presiding Judge, Regional The records disclose the following:

Trial Court, Branch 20, Cagayan de Oro City, Unaware of the death on 28 August 1988 of Vitaliana
DEPUTY SHERIFF JOHNSON TAN, JR., Deputy Sheriff Vargas (Vitaliana, for brevity), her full blood brothers and
sisters, herein private respondents (Vargases, for brevity)
of Branch 20, Regional Trial Court, Cagayan de Oro filed on 27 September 1988, a petition for habeas corpus
City, and the Private Respondents, the petitioners before the RTC of Misamis Oriental (Branch 20, Cagayan
de Oro City) alleging that Vitaliana was forcibly taken from
in Sp. Proc. No. 88-55, for "Habeas Corpus", namely: her residence sometime in 1987 and confined by herein
CRISANTA VARGAS-SANCHEZ, RAYMUNDO VARGAS, petitioner in his palacial residence in Jasaan, Misamis
Oriental. Despite her desire to escape, Vitaliana was
ERNESTO VARGAS, NATIVIDAD VARGAS-CAGAPE, allegedly deprived of her liberty without any legal
NENITA VARGAS-CADENAS, LUDIVINA VARGAS-DE authority. At the time the petition was filed, it was alleged
that Vitaliana was 25 years of age, single, and living with
LOS SANTOS and NARCISA VARGAS-BENTULAN, petitioner Tomas Eugenio.
respondents.
The respondent court in an order dated 28 September
G.R. No. 85140 | 1990-05-17
1988 issued the writ of habeas corpus, but the writ was
DECISION returned unsatisfied. Petitioner refused to surrender the
body of Vitaliana (who had died on 28 August 1988) to the
PADILLA, J.: respondent sheriff, reasoning that a corpse cannot be the
subject of habeas corpus proceedings; besides, according
On 5 October 1988, petitioner came to this Court with a to petitioner, he had already obtained a burial permit from
petition for certiorari and prohibition with application for the Undersecretary of the Department of Health,
restraining order and/or injunction (docketed as G.R. No. authorizing the burial at the palace quadrangle of the
85140) seeking to enjoin respondent Judge from Philippine Benevolent Christian Missionary, Inc. (PBCM), a
registered religious sect, of which he (petitioner) is the
Supreme President and Founder. In the absence of a restraining order from this Court,
proceedings continued before the respondent court; the
Petitioner also alleged that Vitaliana died of heart failure body was placed in a coffin, transferred to the Greenhills
due to toxemia of pregnancy in his residence on 28 August Memorial Homes in Cagayan de Oro City, viewed by the
1988. As her common law husband, petitioner claimed presiding Judge of respondent court, and examined by a
legal custody of her body. These reasons were duly authorized government pathologist. 4
incorporated in an explanation filed before the respondent
court. Two (2) orders dated 29 and 30 September 1988 Denying the motion to dismiss filed by petitioner, the court
were then issued by respondent court, directing delivery a quo held in an order, 5 dated 17 November 1988, that:
of the deceased's body to a funeral parlor in Cagayan de "It should be noted from the original petition, to the first
Oro City and its autopsy. amended petition, up to the second amended petition that
the ultimate facts show that if the person of Vitaliana
Petitioner (as respondent in the habeas corpus Vargas turns out to be dead then this Court is being prayed
proceedings) filed an urgent motion to dismiss the petition to declare the petitioners as the persons entitled to the
therein, claiming lack of jurisdiction of the court over the custody, interment and/or burial of the body of said
nature of the action under sec. 1(b) of Rule 16 in relation deceased. The Court, considering the circumstance that
to sec. 2, Rule 72 of the Rules of Court. 1 A special Vitaliana Vargas was already dead on August 28, 1988 but
proceeding for habeas corpus, petitioner argued, is not only revealed to the Court on September 29, 1988 by
applicable to a dead person but extends only to all cases respondent's counsel, did not lose jurisdiction over the
of illegal confinement or detention of a live person. nature and subject matter of this case because it may
entertain this case thru the allegations in the body of the
Before resolving the motion to dismiss, private petition on the determination as to who is entitled to the
respondents (as petitioners below) were granted leave to custody of the dead body of the late Vitaliana Vargas as
amend their petition. 2 Claiming to have knowledge of the well as the burial or interment thereof, for the reason that
death of Vitaliana only on 28 September 1988 (or after the under the provisions of Sec. 19 of Batas Pambansa Blg.
filing of the habeas corpus petition), private respondents 129, which reads as follows:
(Vargases) alleged that petitioner Tomas Eugenio, who is '
not in any way related to Vitaliana was wrongfully Sec. 19. Jurisdiction in civil cases. Regional Trial Courts
interfering with their (Vargases') duty to bury her. shall exercise exclusive original jurisdiction:
Invoking Arts. 305 and 308 of the Civil Code, 3 the
Vargases contended that, as the next of kin in the (1) In all civil actions in which the subject of the litigation
Philippines, they are the legal custodians of the dead body is incapable of pecuniary estimation;
of their sister Vitaliana. An exchange of pleadings xxx xxx xxx
followed. The motion to dismiss was finally submitted for
resolution on 21 October 1988. (5) In all actions involving the contract of marriage and
marital relations; for custody and burial of the dead body because the body
of the petition controls and is binding and since this case
(6) In all cases not within the exclusive jurisdiction of any was raffled to this court to the exclusion of all other courts,
court, tribunal, person or body exercising judicial or quasi- it is the primary duty of this court to decide and dispose
judicial functions: of this case. . . ." 10
xxx xxx xxx Satisfied with its jurisdiction, the respondent court then
it so provides that the Regional Trial Court has exclusive proceeded to the matter of rightful custody over the dead
original jurisdiction to try this case. The authority to try body, (for purposes of burial thereof). The order of
the issue of custody and burial of a dead person is within preference to give support under Art. 294 was used as the
the lawful jurisdiction of this Court because of Batas basis of the award. Since there was no surviving spouse,
Pambansa Blg. 129 and because of the allegations of the ascendants or descendants, the brothers and sisters were
pleadings in this case, which are enumerated in Sec. 19, preferred over petitioner who was merely a common law
pars. 1, 5 and 6 of Batas Pambansa Blg. 129." spouse, the latter being himself legally married to another
Thereafter, the court a quo proceeded as in ordinary civil woman. 11
cases and, in due course, rendered a decision on 17
January 1989, 6 resolving the main issue of whether or On 23 January 1989, a new petition for review with
not said court acquired jurisdiction over the case by application for a temporary restraining order and/or
treating it as an action for custody of a dead body, without preliminary injunction was filed with this Court (G.R. No.
the petitioners having to file a separate civil action for such 86470). Raised therein were pure questions of law,
relief, and without the Court first dismissing the original basically identical to those raised in the earlier petition
petition for habeas corpus. (G.R. No. 85140); hence, the consolidation of both cases.
12 On 7 February 1989, petitioner filed an urgent motion
Citing Sections 19 and 20 of Batas Pambansa Blg. 129 (the for the issuance of an injunction to maintain status quo
Judiciary Reorganization Act of 1981), 7 Sections 5 and 6 pending appeal, which this Court denied in a resolution
of Rule 135 of the Rules of Court, 8 Articles 305 and 308 dated 23 February 1989 stating that "Tomas Eugenio has
in relation to Article 294 of the Civil Code and Section 1104 so far failed to sufficiently establish a clear legal right to
of the Revised Administrative Code, 9 the decision stated: the custody of the dead body of Vitaliana Vargas, which
". . . By a mere reading of the petition the court observed now needs a decent burial." The petitions were then
that the allegations in the original petition as well as in the submitted for decision without further pleadings.
two amended petitions show that Vitaliana Vargas has
been restrained of her liberty and if she were dead then Between the two (2) consolidated petitions, the following
relief was prayed for the custody and burial of said dead issues are raised:.
person. The amendments to the petition were but 1. propriety of a habeas corpus proceeding under Rule 102
elaborations but the ultimate facts remained the same, of the Rules of Court to recover custody of the dead body
hence, this court strongly finds that this court has ample of a 25 year old female, single, whose nearest surviving
jurisdiction to entertain and sit on this case as an action
claimants are full blood brothers and sisters and a operation on the filing of the petition. Judicial discretion is
common law husband. exercised in its issuance, and such facts must be made to
appear to the judge to whom the petition is presented as,
2. jurisdiction of the RTC over such proceedings and/or its in his judgment, prima facie entitle the petitioner to the
authority to treat the action as one for writ. 14 While the court may refuse to grant the writ if the
custody/possession/authority to bury the petition is insufficient in form and substance, the writ
deceased/recovery of the dead. should issue if the petition complies with the legal
requirements and its averments make a prima facie case
for relief. However, a judge who is asked to issue a writ of
3. interpretation of par. 1, Art. 294 of the Civil Code (Art. habeas corpus need not be very critical in looking into the
199 of the new Family Code) which states: petition for very clear grounds for the exercise of this
jurisdiction. The latter's power to make full inquiry into the
'ART. 294. The claim for support, when proper and two or cause of commitment or detention will enable him to
more persons are obliged to give it, shall be made in the correct any errors or defects in the petition. 15
following order:
In Macazo and Nuñez vs. Nuñez, 16 the Court frowned
(1) From the spouse; upon the dismissal of a habeas corpus petition filed by a
brother to obtain custody of a minor sister, stating:
xxx xxx xxx'
"All these circumstances notwithstanding, we believe that
Section 19, Batas Pambansa Blg. 129 provides for the the case should not have been dismissed. The court below
exclusive original jurisdiction of the Regional Trial Courts should not have overlooked that by dismissing the
over civil cases. Under Sec. 2, Rule 102 of the Rules of petition, it was virtually sanctioning the continuance of an
Court, the writ of habeas corpus may be granted by a adulterous and scandalous relation between the minor and
Court of First Instance (now Regional Trial Court). It is an her married employer, respondent Benildo Nuñez, against
elementary rule of procedure that what controls is not the all principles of law and morality. It is no excuse that the
caption of the complaint or petition; but the allegations minor has expressed preference for remaining with said
therein determine the nature of the action, and even respondent, because the minor may not chose to continue
without the prayer for a specific remedy, proper relief may an illicit relation that morals and law repudiate.
nevertheless be granted by the court if the facts alleged in
the complaint and the evidence introduced so warrant. 13 xxx xxx xxx

When the petition for habeas corpus was filed before the "The minor's welfare being the paramount consideration,
court a quo, it was not certain whether Vitaliana was dead the court below should not allow the technicality, that
or alive. While habeas corpus is a writ of right, it will not Teofilo Macazo was not originally made a party, to stand
issue as a matter of course or as a mere perfunctory in the way of its giving the child full protection. Even in a
habeas corpus proceeding the court had power to award While it is true that our laws do not just brush aside the
temporary custody to the petitioner herein, or some other fact that such relationships are present in our society; and
suitable person, after summoning and hearing all parties that they produce a community of properties and interests
concerned. What matters is that the immoral situation which is governed by law, 20 authority exists in case law
disclosed by the records be not allowed to continue." 17 to the effect that such form of co-ownership requires that
the man and woman living together must not in any way
After the fact of Vitaliana's death was made known to the be incapacitated to contract marriage. 21 In any case,
petitioners in the habeas corpus proceedings, amendment herein petitioner has a subsisting marriage with another
of the petition for habeas corpus, not dismissal, was woman, a legal impediment which disqualified him from
proper to avoid multiplicity of suits. Amendments to even legally marrying Vitaliana. In Santero vs. CFI of
pleadings are generally favored and should be liberally Cavite, 22 the Court, thru Mr. Justice Paras, interpreting
allowed in furtherance of justice in order that every case Art. 188 of the Civil Code (Support of Surviving Spouse
may so far as possible be determined on its real facts and and Children During Liquidation of Inventoried Property)
in order to expedite the trial of cases or prevent circuity of stated: "Be it noted however that with respect to 'spouse',
action and unnecessary expense, unless there are the same must be the 'legitimate spouse' (not common-
circumstances such as inexcusable delay or the taking of law spouses . . .)."
the adverse party by surprise or the like, which justify a
refusal of permission to amend. 18 As correctly alleged by There is a view that under Article 332 of the Revised Penal
respondents, the writ of habeas corpus as a remedy Code, the term "spouse" embraces common law relation
became moot and academic due to the death of the person for purposes of exemption from criminal liability in cases
allegedly restrained of liberty, but the issue of custody of theft, swindling and malicious mischief committed or
remained, which the court a quo had to resolve. caused mutually by spouses. The Penal Code article, it is
said, makes no distinction between a couple whose
Petitioner claims he is the spouse contemplated under Art. cohabitation is sanctioned by a sacrament or legal tie and
294 of the Civil Code, the term spouse used therein not another who are husband and wife de facto. 23 But this
being preceded by any qualification; hence, in the absence view cannot even apply to the facts of the case at bar. We
of such qualification, he is the rightful custodian of hold that the provisions of the Civil Code, unless expressly
Vitaliana's body. Vitaliana's brothers and sisters contend providing to the contrary as in Article 144, when referring
otherwise. Indeed, Philippine Law does not recognize to a "spouse" contemplate a lawfully wedded spouse.
common law marriages. A man and woman not legally Petitioner vis-a-vis Vitaliana was not a lawfully-wedded
married who cohabit for many years as husband and wife, spouse to her, in fact, he was not legally capacitated to
who represent themselves to the public as husband and marry her in her lifetime.
wife, and who are reputed to be husband and wife in the
community where they live may be considered legally Custody of the dead body of Vitaliana was correctly
"married" in common law jurisdictions but not in the awarded to her surviving brothers and sisters (the
Philippines. 19
Vargases). Section 1103 of the Revised Administrative
Code provides: (b) That the court has no jurisdiction over the nature of
the action or suit;
"Sec. 1103. Persons charged with duty of burial. The
immediate duty of burying the body of a deceased person, Rule 72 (Subject Matter and Applicability of General
regardless of the ultimate liability for the expense thereof, Rules).
shall devolve upon the persons hereinbelow specified:
xxx xxx xxx
xxx xxx xxx
SECTION 2. Applicability of rules of civil actions. In the
"(b) If the deceased was an unmarried man or woman, or absence of special provisions, the rules provided for in
a child, and left any kin, the duty of burial shall devolve ordinary actions shall be, as far as practicable, applicable
upon the nearest of kin of the deceased, if they be adults in special proceedings.
and within the Philippines and in possession of sufficient 2. 3 and 11 October 1988 orders, Record of Regional Trial
means to defray the necessary expenses." Court Proceedings, pp. 74, 75 & 102.
3. ART. 305. The duty and the right to make arrangements
WHEREFORE, the decision appealed from is AFFIRMED. for the funeral of a relative shall be in accordance with the
Both petitions are hereby DISMISSED. No Costs. order established for support, under article 294. In case of
SO ORDERED. descendants of the same degree, or of brothers and
sisters, the oldest shall be preferred. In case of
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., ascendants, the paternal shall have a better right.
Cruz, Paras, Feliciano, Bidin, Sarmiento, Cortes, Medialdea
and Regalado, JJ., concur. ART. 308. No human remains shall be retained, interred,
Gancayco and Griño-Aquino, JJ., are on leave. disposed of or exhumed without the consent of the
persons mentioned in Articles 294 and 305.
Footnotes: 4. Record of RTC Proceedings, pp. 296-297.
5. Ibid., p. 338.
* Hon. Alejandro Velez, presiding. 6. Record of RTC Proceedings, p. 577.
1. Rule 16 (Motion to Dismiss): 7. Supra.
8. Sec. 5 Inherent power of courts; Sec. 6 - means to carry
SECTION 1. Grounds. Within the time for pleading a jurisdiction into effect.
motion to dismiss the action may be made on any of the 9. Sec. 1104. Right of custody to body - Any person
following grounds: charged by law with the duty of burying the body of a
deceased person is entitled to the custody of such body
(a) . . . for the purpose of burying it, except when an inquest is
required by law for the purpose of determining the cause
of death; and, in case of death due to or accompanied by RAMON JOAQUIN, petitioner, vs. ANTONIO C.
a dangerous communicable disease, such body shall until
buried remain in the custody of the local board of health NAVARRO, respondent.
or local health officer, or if there be no such, then in the G.R. Nos. L-5426-28 | 1953-05-29
custody of the municipal council.
10. G.R. No. 86470, Rollo at 34. DECISION
11. Annexes 7 & 8, Petition, G.R. No. 85140, Rollo at 85
and 86. TUASON, J.:
12. Resolution of 26 January 1989, G.R. No. 85140, Rollo
at 114. These three proceedings were instituted in the Court of First
13. Ras v. Sua, G.R. No. L-23302, September 25, 1968, Instance of Manila for the summary settlement of the estates of
25 SCRA 158-159; Nactor v. IAC, G.R. No. 74122, March Joaquin Navarro, Sr., his wife Angela Joaquin de Navarro, Joaquin
15, 1988, 158 SCRA 635. Navarro, Jr., and Pilar Navarro, deceased. All of them having been
14. 39 Am. Jur., 2d, Habeas Corpus §129. heard jointly, Judge Rafael Amparo handed down a single decision
15. Ibid., §130. which was appealed to the Court of Appeals, whose decision,
modifying that of the Court of First Instance, in turn was elevated to
16. G.R. No. L-12772, 24 January 1959, 105 Phil. 55.
the Supreme Court for review.
17. Ibid.
18. PNB vs. CA, G.R. No. L-45770, 30 March 1988, 159 The main question presented in the first two courts related to the
SCRA 933.
sequence of the deaths of Joaquin Navarro, Sr., his wife, and their
19. Fiel vs. Banawa, No. 56284-R, March 26, 1979, 76 OG children, all of whom were killed in the massacre of civilians by
619. Japanese troops in Manila in February 1945. The trial court found
20. Article 144 of the Civil Code provides: the deaths of these persons to have occurred in this order: 1st. The
Navarro girls, named Pilar, Concepcion and Natividad; 2nd. Joaquin
When a man and a woman live together as husband and Navarro, Jr.; 3rd. Angela Joaquin de Navarro, and 4th, Joaquin
wife, but they are not married, or their marriage is void Navarro, Sr. The Court of Appeals concurred with the trial court
from the beginning, the property acquired by either or except that, with regard to Angela Joaquin de Navarro and Joaquin
both of them through their work or industry or their wages Navarro, Jr., the latter was declared to have survived his mother.
and salaries shall be governed by the rules on co-
ownership. It is this modification of the lower court's finding which is now
21. Aznar, et al. vs. Garcia, et al., G.R. Nos. L-11483-84, being contested by the petitioner. The importance of the question
14 February 1958, 102 Phil. 1055. whether Angela Joaquin de Navarro died before Joaquin Navarro, Jr.,
22. G.R. Nos. 61700-03, September 24, 1987, 153 SCRA or vice versa, lies in the fact that it radically affects the right of
728. succession of Ramon Joaquin, the present petitioner who was an
23. People vs. Constantino, No. 01897-CR, September 6, acknowledged natural child of Angela Joaquin and adopted child of
1963, 60 O.G. 3603. the deceased spouses, and of Antonio C. Navarro, respondent, son of
Joaquin Navarro, Sr. by first marriage.
 brother; while the other sisters, Concepcion and Natividad Navarro
The facts, which are not disputed, are outlined in the statement in y Joaquin, were between 23 and 25."
the decision of the Court of Appeals as follows:
The Court of Appeals' findings were all taken from the testimony of
"On February 6, 1945, while the battle for the liberation of Manila Francisco Lopez, who miraculously survived the holocaust, and
was raging, the spouses Joaquin Navarro, Sr. and Angela Joaquin, upon them the Court of Appeals opined that, "as between the
together with their three daughters, Pilar, Concepcion, and mother Angela Joaquin and the son Joaquin Navarro, Jr., the
Natividad, and their son Joaquin Navarro, Jr., and the latter's wife, evidence of survivorship is uncertain and insufficient" and the
Adela Conde, sought refuge in the ground floor of the building statutory presumption must be applied. The Appellate Court's
known as the German Club, at the corner of San Marcelino and San reasoning for its conclusion is thus stated:
Luis Streets of this City. During their stay, the building was packed
with refugees, shells were exploding around, and the Club was set "It does not require argument to show that survivorship cannot be
on fire. Simultaneously, the Japanese started shooting at the people established by proof of the death of only one of the parties; but that
inside the building, especially those who were trying to escape. The there must be adequate proof that one was alive when the other had
three daughters were hit and fell on the ground near the entrance; already died. Now in this case before us, the testimony of the sole
and Joaquin Navarro, Sr. and his son decided to abandon the witness Lopez is to the effect that Joaquin Navarro, Jr. was shot and
premises to seek a safer haven. They could not convince Angela died shortly after leaving the German Club in the company of his
Joaquin, who refused to join them; and so Joaquin Navarro, Sr., his father and the witness, and that the burning edifice entirely
son, Joaquin Navarro, Jr., and the latter's wife, Adela Conde, and a collapsed minutes after the shooting of the son; but there is not a
friend and former neighbor, Francisco Lopez, dashed out of the scintilla of evidence, direct or circumstantial, from which we may
burning edifice. As they came out, Joaquin Navarro, Jr. was shot in infer the condition of the mother, Angela Joaquin, during the
the head by a Japanese soldier and immediately dropped. The appreciable interval from the instant her son turned his back to her,
others lay flat on the ground in front of the Club premises to avoid to dash out of the Club, until he died. All we can glean from the
the bullets. Minutes later, the German Club, already on fire, evidence is that Angela Joaquin was unhurt when her son left her to
collapsed, trapping many people inside, presumably including escape from the German Club; but she could have died almost
Angela Joaquin. immediately after, from a variety of causes. She might have been
shot by the Japanese, like her daughters, killed by falling beams
"Joaquin Navarro, Sr., Mrs. Joaquin Navarro, Jr., and Francisco Lopez from the burning edifice, overcome by the fumes, or fatally struck by
managed to reach an air raid shelter nearby, and stayed there about splinters from the exploding shells. We cannot say for certain. No
three days, until February 10, 1945, when they were forced to leave evidence is available on the point. All we can decide is that no one
the shelter because the shelling tore it open. They fled toward the saw her alive after her son left her side, and that there is no proof
St. Theresa Academy in San Marcelino Street, but unfortunately met when she died. Clearly, this circumstance alone cannot support a
Japanese patrols, who fired at the refugees, killing Joaquin Navarro, finding that she died later than her son, and we are thus compelled
Sr. and his daughter-in-law. to fall back upon the statutory presumption. Indeed, it could be said
that the purpose of the presumption of survivorship would be
"At the time of the massacre, Joaquin Navarro, Sr. was aged 70; his precisely to afford a solution to uncertainties like these. Hence, the
wife Angela Joaquin was about 67 years old; Joaquin Navarro, Jr. son Joaquin Navarro, Jr. aged 30, must be deemed to have survived
about 30; Pilar Navarro was two or three years older than her his mother, Angela Joaquin, who was admittedly above 60 years of
age (Rule 123, sec. 69, subsec. (ii), Rules of Court). "When two persons perish in the same calamity, such as wreck,
battle, or conflagration, and it is not (1) shown who died first, and
"The total lack of evidence on how Angela Joaquin died likewise there are no (2) particular circumstances from which it can be
disposes of the question whether she and her deceased children inferred, the survivorship is presumed from the probabilities
perished in the same calamity. There being no evidence to the resulting from the strength and age of the sexes, according to the
contrary, the only guide is the occasion of the deaths, which is following rules:
identical for all of them: the battle for the liberation of Manila. A
second reason is that the law, in declaring that those fallen in the xxx xxx xxx
same battle are to be regarded as perishing in the same calamity,
could not have overlooked that a variety of causes of death can (and Article 33 of the Civil Code of 1889 is of the following tenor:
usually do) operate in the course of combats. During the same
battle, some may die from wounds, others from gases, fire, or "Whenever a doubt arises as to which was the first to die of the two
drowning. It is clear that the law disregards episodic details, and or more persons who would inherit one from the other, the person
treats of the battle as an overall cause of death in applying the who alleges the prior death of either must prove the allegation; in
presumption of survivorship. the absence of proof the presumption shall be that they died at the
same time, and no transmission of rights from one to the other shall
"We are thus led to the conclusion that the order in which the take place."
members of the Navarro-Joaquin family met their end is as follows:
first, the three daughters Pilar, Concepcion, and Natividad; then the Both provisions, as their language plainly implies, are intended as a
mother Angela Joaquin; then the son Joaquin Navarro, Jr., and days substitute for facts, and so are not to be available when there are
later (of which there is no doubt), the father Joaquin Navarro, Sr." facts. With particular reference to section 69 (ii) of Rule 123, "the
situation which it represents is one in which the facts are not only
Much space in the briefs is taken in a discussion of whether section unknown but unknowable. By hypothesis, there is no specific
334 (37) of Act No. 190, now section 69(ii) of Rule 123 of the Rules evidence as to the time of death . . . " . . . it is assumed that no
of Court, has repealed article 33 of the Civil Code of 1889, now evidence can be produced. . . . Since the facts are unknown and
article 43 of the New Civil Code. It is the contention of the petitioner unknowable, the law may apply the law of fairness appropriate to
that it did not, and that on the assumption that there is total lack of the different legal situations that arises." (IX Wigmore on Evidence,
evidence, as the Court of Appeals said, then Angela Joaquin and 1940 ed., 483.)
Joaquin Navarro, Jr. should, under article 33, be held to have died at
the same time. In In re Wallace's Estate, 220 Pac. 683, which the Court of Appeals
cited and applied with respect to the deaths of the Navarro girls,
The point is not of much if any relevancy and will be left open for pointing out that "our rule is taken from the Fourth Division of sec.
consideration when absolute necessity therefor arises. We say 1936 of the California Code of Civil Procedure," the Supreme Court
irrelevant because our opinion is that neither of the two provisions of California said:
is applicable for the reasons to be presently set forth.
"When the statute speaks of 'particular circumstances from which it
Rule 123, section 69(ii) of the Revised Rules of Court, reads: can be inferred' that one died before the other, it means that there
are circumstances from which the fact of death by one before the
other may be inferred as a rational conclusion from the facts
proven. The Statute does not mean circumstances which would "Q. When the German Club collapsed where were you? - A. We were
show, or which would tend to show, probably that one died before about 15 meters away from the building but I could see what was
the other. Grand Lodge A.O.W.W. vs. Miller, 8 Cal. App. 28, 96 Pac. going on."
22. When, by circumstantial evidence alone, a party seeks to prove a
survivorship contrary to the statutory presumption, the xxx xxx xxx
circumstances by which it is sought to prove the survivorship must
be such as are competent and sufficient when tested by the general "Q. Could there have been an interval of fifteen minutes between the
rules of evidence in civil cases. The inference of survivorship cannot two events, that is the shooting of Joaquin Navarro, Jr. and the
rest upon mere surmise, speculation, or conjecture. As was said in collapse of the German Club? - A. Yes sir, I could not say exactly,
Grand Lodge vs. Miller, supra, 'if the matter is left to probability, Occasions like that, you know, you are confused.
then the statute settles the presumption.'"
"Q. Could there (have) been an interval of an hour instead of fifteen
It is manifest from the language of section 69(ii) of Rule 123 and of minutes? - A. Possible, but not probable.
that of the foregoing decision that the evidence of survivorship need
not be direct; it may be indirect, circumstantial, or inferential. "Q. Could it have been 40 minutes? - A. Yes, sir, about 40 minutes."
Where there are facts, known or knowable, from which a rational
conclusion can be made, the presumption does not step in, and the xxx xxx xxx
rule of preponderance of evidence controls.
"Q. You also know that Angela Joaquin is already dead? - A. Yes, sir.
Are there particular circumstances on record from which
reasonable inference of survivorship between Angela Joaquin and "Q. Can you tell the Honorable Court when did Angela Joaquin die? -
her son can be drawn? Is Francisco Lopez' testimony competent and A. Well, a few minutes after we have dashed out, the German Club,
sufficient for this purpose? For a better appreciation of this issue, it which was burning, collapsed over them, including Mrs. Joaquin
is convenient and necessary to detail the testimony, which was Navarro, Sr."
described by the trial court as "disinterested and trustworthy" and
by the Court of Appeals as "entitled to credence." xxx xxx xxx

Lopez testified: "Q. From your testimony it would appear that while you can give
positive evidence to the fact that Pilar, Concepcion and Natividad
"Q. You said you were also hit at that time as you leave the German Navarro, and Joaquin Navarro, Jr. died, you can not give the same
Club with Joaquin Navarro, Sr., Joaquin Navarro, Jr. and the latter's positive evidence to the fact that Angela Joaquin also died? - A. Yes,
wife? - A. Yes, sir. sir, in the sense that I did not see her actually die, but when the
building collapsed over her I saw and I am positive and I did not see
"Q. Did you fall? - A. I fell down. her come out of that building so I presumed she died there."

"Q. And you said you fell down close to Joaquin Navarro, Jr.? - A. Yes, xxx xxx xxx
sir.
"Q. Why did you have to dash out of the German Club, you, Mr. It is our opinion that the preceding testimony contains facts quite
Joaquin Navarro, Sr. and Mr. Joaquin Navarro Jr. and the latter's adequate to solve the problem of survivorship between Angela
wife? - A. Because the Japanese had set fire to the Club and they Joaquin and Joaquin Navarro, Jr. and keep the statutory
were shooting people outside, so we thought of running away rather presumption out of the case. It is believed that in the light of the
than be roasted." conditions painted by Lopez, a fair and reasonable inference can be
arrived at, namely: that Joaquin Navarro, Jr. died before his mother.
xxx xxx xxx
While the possibility that the mother died before the son can not be
"Q. You mean to say that before you jumped out of the German Club ruled out, it must be noted that this possibility is entirely
all the Navarro girls, Pilar, Concepcion, and Natividad, were already speculative and must yield to the more rational deduction from
wounded? - A. To my knowledge, yes. proven facts that it was the other way around. Joaquin Navarro, Jr.,
it will be recalled, was killed, while running, in front of, and 15
"Q. They were wounded? - A. Yes, sir. meters from, the German Club. Still in the prime of life, 30, he must
have negotiated that distance in five seconds or less, and so died
"Q. Were they lying on the ground or not? - A. On the ground near within that interval from the time he dashed out of the building.
the entrance, because most of the people who were shot by the Now, when Joaquin Navarro, Jr. with his father and wife started to
Japanese were those who were trying to escape, and as far as I can flee from the clubhouse, the old lady was alive and unhurt, so much
remember they were among those killed." so that the Navarro father and son tried hard to have her come
along. She could have perished within those five or fewer seconds,
xxx xxx xxx as stated, but the probabilities that she did seem very remote. True,
people in the building were also killed but these, according to Lopez,
"Q. So you noticed that they were killed or shot by the Japanese a were mostly refugees who had tried to slip away from it and were
few minutes before you left the place? - A. That is what I think, shot by Japanese troops. It was not very likely that Mrs. Joaquin
because those Japanese soldiers were shooting the people inside Navarro, Sr. made an attempt to escape. She even made frantic
especially those trying to escape." efforts to dissuade her husband and son from leaving the place and
exposing themselves to gun fire.
xxx xxx xxx
This determination of Mrs. Angela Joaquin to stay where she was
"Q. And none of them was shot except the three girls, is that what may well give an idea, at the same time, of a condition of relative
you mean? - A. There were many people shot because they were safety in the clubhouse at the moment her husband, son, and
trying to escape." daughter- in-law left her. It strongly tends to prove that, as the
situation looked to her, the perils of death from staying were not so
xxx xxx xxx imminent. And it lends credence to Mr. Lopez' statement that the
collapse of the clubhouse occurred about 40 minutes after Joaquin
"Q. How come that these girls were shot when they were inside the Navarro the son was shot in the head and dropped dead, and that it
building, can you explain that? - A. They were trying to escape was the collapse that killed Mrs. Angela Navarro. The Court of
probably." Appeals said the interval between Joaquin Navarro's death and the
breaking down of the edifice was "minutes". Even so, it was much
longer than five seconds, long enough to warrant the inference that Moore on Facts, Sec. 596.) The same author tells us of a case where
Mrs. Angela Joaquin was still alive when her son expired. "a jury was justified in drawing the inference that the person who
was caught firing a shot at an animal trespassing on his land was the
The Court of Appeals mentioned several causes, besides the collapse person who fired a shot about an hour before at the same animal
of the building, by which Mrs. Navarro could have been killed. All also trespassing." That conclusion was not airtight, but rational. In
these causes are speculative, and the probabilities, in the light of the fact, the circumstances in the illustration leave greater room for
known facts, are against them. Dreading Japanese sharpshooters another possibility than do the facts of the case at hand.
outside as evidenced by her refusal to follow the only remaining
living members of her family, she could not have kept away from In conclusion, the presumption that Angela Joaquin de Navarro died
protective walls. Besides, the building had been set on fire to trap before her son is based purely on surmises, speculations, or
the refugees inside, and there was no necessity for the Japanese to conjectures without any sure foundation in the evidence. The
waste their ammunition except upon those who tried to leave the opposite theory - that the mother outlived her son - is deduced from
premises. Nor was Angela Joaquin likely to have been killed by established facts which, weighed by common experience, engender
falling beams because the building was made of concrete and its the inference as a very strong probability. Gauged by the doctrine of
collapse, more likely than not, was sudden. As to fumes, these do not preponderance of evidence by which civil cases are decided, this
cause instantaneous death; certainly not within the brief space of inference ought to prevail. It can not be defeated as in an instance,
five seconds between her son's departure and his death. cited by Lord Chief Justice Kenyon, "bordering on the ridiculous,
where in an action on the game laws it was suggested that the gun
It will be said that all this is indulging in inferences that are not with which the defendant fired was not charged with shot, but that
conclusive. Section 69(ii) of Rule 123 does not require that the the bird might have died in consequence of the fright." (1 Moore on
inference necessary to exclude the presumption therein provided be Facts, 63, citing Wilkinson vs. Payne, 4 T. R. 468.)
certain. It is the "particular circumstances from which it
(survivorship) can be inferred" that are required to be certain as It is said that that part of the decision of the Court of Appeals which
tested by the rules of evidence. In speaking of inference the rule can the appellant impugns, and which has been discussed, involves
not mean beyond doubt, for "inference is never certainty, but it may findings of fact which can not be disturbed. The point is not, in our
be plain enough to justify a finding of fact." (In re Bohenko's Estate, judgment, well considered. The particular circumstances from
4 N.Y.S. 2nd. 427, citing Tortora vs. State of New York, 269 N.Y. 199 which the parties and the Court of Appeals drew conclusions are, as
N.E. 44; Hart vs. Hudson River Bridge Co., 80 N.Y. 622.) As the above seen, undisputed, and this being the case, the correctness or
California courts have said, it is enough that "the circumstances by incorrectness of those conclusions raises a question of law, not of
which it is sought to prove the survivorship must be such as are fact, which the Supreme Court has jurisdiction to look into. As was
competent and sufficient when tested by the general rules of said in 1 Moran Commentaries on the Rules of Court, 3rd Ed. 856,
evidence in civil cases." (In re Wallace's Estate, supra.) "Juries must 857, "Undisputed evidence is one thing, and contradicted evidence
often reason," says one author, "according to probabilities, drawing is another. An incredible witness does not cease to be such because
an inference that the main fact in issue existed from collateral facts he is not impeached or contradicted. But when the evidence is
not directly proving, but strongly tending to prove, its existence. purely documentary, the authenticity of which is not questioned and
The vital question in such cases is the cogency of the proof afforded the only issue is the construction to be placed thereon, or where a
by the secondary facts. How likely, according to experience, is the case is submitted upon an agreement of facts, or where all the facts
existence of the primary fact if certain secondary facts exist?" (1 are stated in the judgment and the issue is the correctness of the
conclusions drawn therefrom, the question is one of law which may Philippine Islands, to compel him to issue a certificate of Philippine
be reviewed by the Supreme Court." registry to the petitioner for its motor vessel Bato. The Attorney-
General, acting as counsel for respondent, demurs to the petition on
The question of whether upon given facts the operation of the the general ground that it does not state facts sufficient to constitute
statutory presumption is to be invoked is a question of law. a cause of action. While the facts are thus admitted, and while,
moreover, the pertinent provisions of law are clear and
The prohibition against intermeddling with decisions on questions understandable, and interpretative American jurisprudence is
of evidence refers to decisions supported by substantial evidence. found in abundance, yet the issue submitted is not lightly to be
By substantial evidence is meant real evidence or at least evidence resolved. The question, flatly presented, is, whether Act No. 2761 of
about which reasonable men may disagree. Findings grounded the Philippine Legislature is valid - or, more directly stated, whether
entirely on speculations, surmises, or conjectures come within the the Government of the Philippine Islands, through its Legislature,
exception to the general rule. can deny the registry of vessels in its coastwise trade to
corporations having alien stockholders.
We are constrained to reverse the decision under review, and hold
that the distribution of the decedents' estates should be made in FACTS.
accordance with the decision of the trial court. This result precludes
the necessity of passing upon the question of "reserva troncal" Smith, Bell & Co., (Ltd.), is a corporation organized and existing
which was put forward on the hypothetical theory that Mrs. Joaquin under the laws of the Philippine Islands. A majority of its
Navarro's death preceded that of her son. Without costs. stockholders are British subjects. It is the owner of a motor vessel
known as the Bato built for it in the Philippine Islands in 1916, of
Feria, Pablo, Bengzon, Montemayor, Reyes, Jugo, Bautista Angelo more than fifteen tons gross. The Bato was brought to Cebu in the
and Labrador, JJ., concur. present year for the purpose of transporting plaintiff's merchandise
between ports in the Islands. Application was made at Cebu, the
home port of the vessel, to the Collector of Customs for a certificate
of Philippine registry. The Collector refused to issue the certificate,
SMITH, BELL & COMPANY (LTD.), petitioner, vs. giving as his reason that all the stock- holders of Smith, Bell & Co.,
Ltd., were not citizens either of the United States or of the Philippine
JOAQUIN NATIVIDAD, Collector of Customs of the Islands. The instant action is the result.
port of Cebu, respondent.
LAW.
G.R. No. 15574 | 1919-09-17

DECISION The Act of Congress of April 29, 1908, repealing the Shipping Act of
April 30, 1906, but reenacting a portion of section 3 of this Law, and
MALCOLM, J .: still in force, provides in its section 1:

"That until Congress shall have authorized the registry as vessels of

A writ of mandamus is prayed for by Smith, Bell & Co. (Ltd.), against
Joaquin Natividad, Collector of Customs of the port of Cebu, the United States of vessels owned in the Philippine Islands, the
Government of the Philippine Islands is hereby authorized to adopt,
from time to time, and enforce regulations governing the the Philippine Islands shall not become law until they shall receive
transportation of merchandise and passengers between ports or the approval of the President of the United States, nor shall any act
places in the Philippine Archipelago." (35 Stat. at L., 70; Section of the Philippine Legislature affecting immigration or the currency
3912, U. S. Comp. Stat. [1916]; 7 Pub. Laws, 364.) or coinage laws of the Philippines become a law until it has been
approved by the President of the United States: Provided further,
That the President shall approve or disapprove any act mentioned
The Act of Congress of August 29, 1916, commonly known as the in the foregoing proviso within six months from and after its
Jones Law, still in force, provides in sections 3, (first paragraph, first enactment and submission for his approval, and if not disapproved
sentence), 6, 7, 8, 10, and 31, as follows: within such time it shall become a law the same as if it had been
specifically approved."
"Sec. 3. That no law shall be enacted in said Islands which shall
deprive any person of life, liberty, or property without due process "SEC. 31. That all laws or parts of laws applicable to the Philippines
of law, or deny to any person therein the equal protection of the not in conflict with any of the provisions of this Act are hereby
laws." . . . continued in force and effect." (39 Stat at L., 546.)
"SEC. 6. That the laws now in force in the Philippines shall continue
in force and effect, except as altered, amended, or modified herein, On February 23, 1918, the Philippine Legislature enacted Act No.
until altered, amended, or repealed by the legislative authority 2761. The first section of this law amended section 1172 of the
herein provided or by Act of Congress of the United States. Administrative Code to read as follows:

"SEC. 7. That the legislative authority herein provided shall have "SEC. 1172. Certificate of Philippine register. - Upon registration of a
power, when not inconsistent with this Act, by due enactment to vessel of domestic ownership, and of more than fifteen tons gross, a
amend, alter, modify, or repeal any law, civil or criminal, continued certificate of Philippine register shall be issued for it. If the vessel is
in force by this Act as it may from time to time see fit. of domestic ownership and of fifteen tons gross or less, the taking of
the certificate of Philippine register shall be optional with the
"This power shall specifically extend with the limitation herein owner.
provided as to the tariff to all laws relating to revenue and taxation
in effect in the Philippines. " 'Domestic ownership,' as used in this section, means ownership
vested in some one or more of the following classes of persons: (a)
"SEC. 8. That general legislative power, except as otherwise herein Citizens or native inhabitants of the Philippine Islands; (b) citizens
provided, is hereby granted to the Philippine Legislature, of the United States residing in the Philippine Islands; (c) any
authorized by this Act." corporation or company composed wholly of citizens of the
Philippine Islands or of the United States or of both, created under
"SEC. 10. That while this Act provides that the Philippine the laws of the United States, or of any State thereof, or of the
government shall have the authority to enact a tariff law the trade Philippine Islands, provides some duly authorized officer thereof, or
relations between the islands and the United States shall continue to the managing agent or master of the vessel resides in the Philippine
be governed exclusively by laws of the Congress of the United Islands.
States: Provided, That tariff acts or acts amendatory to the tariff of
"Any vessel of more than fifteen gross tons which on February
eighth, nineteen hundred and eighteen, had a certificate of Predicated on these facts and provisions of law, the issues as above
Philippine register under existing law, shall likewise be deemed a stated recur, namely, whether Act No. 2761 of the Philippine
vessel of domestic ownership so long as there shall not be any Legislature is valid in whole or in part - whether the Government of
change in the ownership thereof nor any transfer of stock of the the Philippine Islands, through its Legislature, can deny the registry
companies or corporations owning such vessel to persons not of vessel in its coast- wise trade to corporations having alien
included under the last preceding paragraph." stockholders.
Sections 2 and 3 of Act No. 2761 amended sections 1176 and 1202 OPINION.
of the Administrative Code to read as follows:
1. Considered from a positive standpoint, there can exist no
"SEC. 1176. Investigation into character of vessel. - No application measure of doubt as to the power of the Philippine Legislature to
for a certificate of Philippine register shall be approved until the enact Act No. 2761. The Act of Congress of April 29, 1908, with its
collector of customs is satisfied from an inspection of the vessel that specific delegation of authority to the Government of the Philippine
it is engaged or destined to be engaged in legitimate trade and that Islands to regulate the transportation of merchandise and
it is of domestic ownership as such ownership is defined in section passengers between ports or places therein, the liberal construction
eleven hundred and seventy-two of this Code. given to the provisions of the Philippine Bill, the Act of Congress of
July 1, 1902, by the courts, and the grant by the Act of Congress of
"The collector of customs may at any time inspect a vessel or August 29, 1916, of general legislative power to the Philippine
examine its owner, master, crew, or passengers in order to ascertain Legislature, are certainly superabundant authority for such a law.
whether the vessel is engaged in legitimate trade and is entitled to While the Act of the local legislature may in a way be inconsistent
have or retain the certificate of Philippine register." with the Act of Congress regulating the coasting trade of the
Continental United States, yet the general rule that only such laws of
"SEC. 1202. Limiting number of foreign officers and engineers on the United States have force in the Philippines as are expressly
board vessels. - No Philippine vessel operating in the coastwise extended thereto, and the abnegation of power by Congress in favor
trade or on the high seas shall be permitted to have on board more of the Philippine Islands would leave no starting point for
than one master or one mate and one engineer who are not citizens convincing argument. As a matter of fact, counsel for petitioner does
of the United States or of the Philippine Islands, even if they hold not assail legislative action from this direction. (See U. S. vs. Bull
licenses under section one thousand one hundred and ninety-nine [1910], 15 Phil., 7; Sinnot vs. Davenport [1859] 22 How., 227.)
hereof. No other person who is not a citizen of the United States or
of the Philippine Islands shall be an officer or a member of the crew 2. It is from the negative, prohibitory standpoint that counsel argues
of such vessel. Any such vessel which fails to comply with the terms against the constitutionality of Act No. 2761. The first paragraph of
of this section shall be required to pay an additional tonnage tax of the Philippine Bill of Rights of the Philippine Bill, repeated again in
fifty centavos per net ton per month during the continuance of said the first paragraph of the Philippine Bill of Rights as set forth in the
failure." Jones Law, provides "That no law shall be enacted in said Islands
which shall deprive any person of life, liberty, or property without
ISSUES. due process of law, or deny to any person therein the equal
protection of the laws." Counsel says that Act No. 2761 denies to
Smith, Bell & Co., Ltd., the equal protection of the laws because it, in Railway Co. vs. Ellis [1897], 165 U. S., 150.) Examples of laws held
effect, prohibits the corporation from owning vessels, and because unconstitutional because of unlawful discrimination against aliens
classification of corporations based on the citizenship of one or could be cited. Generally, these decisions relate to statutes which
more of their stockholders is capricious, and that Act No. 2761 had attempted arbitrarily to forbid aliens to engage in ordinary
deprives the corporation of its property without due process of law kinds of business to earn their living. (State vs. Montgomery [1900],
because by the passage of the law the company was automatically 94 Maine, 192, peddling - but see Commonwealth vs. Hana [1907],
deprived of every beneficial attribute of ownership in the Bato and 195 Mass., 262; Templar vs. Board of Examiners of Barbers [1902],
left with the naked title to a boat it could not use. 131 Mich., 254, barbers; Yick Wo vs. Hopkins [1886], 118 U. S 356,
discrimination against Chinese ; Truax vs. Raich [1915], 239 U. S.,
The guaranties extended by the Congress of the United States to the 33; In re Parrott [1880], 1 Fed., 481; Fraser vs McConway & Torley
Philippine Islands have been used in the same sense as like Co. [1897], 82 Fed., 257, Juniata Llmestone Co. vs. Fagley [1898],
provisions found in the United States Constitution. While the "due 187 Penn., 193, all relating to the employment of aliens by private
process of law and equal protection of the laws" clause of the corporations.)
Philippine Bill of Rights is couched in slightly different words than
the corresponding clause of the Fourteenth Amendment to the A literal application of general principles to the facts before us
United States Constitution, the first should be interpreted and given would, of course, cause the inevitable deduction that Act No. 2761 is
the same force and effect as the latter. (Kepner vs. U. S. [1904], 195 unconstitutional by reason of its denial to a corporation, some of
U. S., 100; Serra vs. Mortiga [1907], 204 U. S., 470, U. S. vs. Bull whose members are foreigners, of the equal protection of the laws.
[1910], 15 Phil., 7.) The meaning of the Fourteenth Amendment has Like all beneficent propositions, deeper research discloses provisos.
been announced in classic decisions of the United States Supreme Examples of a denial of rights to aliens notwithstanding the
Court. Even at the expense of restating what is so well known, these provisions of the Fourteenth Amendment could be cited. (Tragesser
basic principles must again be set down in order to serve as the vs. Gray [1890], 73 Md., 250, licenses to sell spirituous liquors
basis of this decision. denied to persons not citizens of the United States; Commonwealth
vs. Hana [1907], 19.~ Mass., 262, excluding aliens from the right to
The guaranties of the Fourteenth Amendment and so of the first peddle; Patsone vs. Commonwealth of Pennsylvania [1914], 232 U.
paragraph of the Philippine Bill of Rights, are universal in their S., 138, prohibiting the killing of any wild bird or animal by any
application to all persons within the territorial jurisdiction, without unnaturalized foreign-born resident; Ex parte Gilleti [1915], 70 Fla.,
regard to any differences of race, color, or nationality. The word 442, discriminating in favor of citizens with reference to the taking
"person" includes aliens. (Yick Wo vs. Hopkins [1886], 118 U. S., for private use of the common property in fish and oysters found in
356; Truax vs. Raich [1915], 239 U. S., 33.) Private corporations, the public waters of the State; Heim vs. McCall [1915], 239 U. S., 175,
likewise, are "persons" within the scope of the guaranties in so far and Crane vs. New York [1915], 239 U. S., 195, limiting employment
as their property is concerned. (Santa Clara County vs. Southern on public works by, or for, the State or a municipality to citizens of
Pac. R. R. Co. [1886], 118 U. S., 394; Pembina Mining Co. vs. the United States.)
Pennsylvania [1888], 125 U. S., 181; Covington &; L. Turnpike Road
Co. vs. Sandford [1896], 164 U. S., 578.) Classification with the end One of the exceptions to the general rule, most persistent and far
in view of providing diversity of treatment may be made among reaching in influence is, that neither the Fourteenth Amendment to
corporations, but must be based upon some reasonable ground and the United States Constitution, broad and comprehensive as it is,
not be a mere arbitrary selection. (Gulf, Colorado & Santa Fe nor any other amendment, "was designed to interfere with the
power of the State, sometimes termed its 'police power,' to Organic Law, it must be done under some one of the exceptions here
prescribe regulations to promote the health, peace, morals, mentioned. This must be done, moreover, having particularly in
education, and good order of the people, and to legislate so as to mind what is so often of controlling effect in this jurisdiction - our
increase the industries of the State, develop its resources and add to local experience and our peculiar local conditions.
its wealth and prosperity- From the very necessities of society,
legislation of a special character, having these objects in view, must To recall a few facts in geography, within the confines of Philippine
often be had in certain districts." (Barbier vs. Connolly [1884], 113 jurisdictional limits are found more than three thousand islands.
U. S., 27; New Orleans Gas Co. vs. Louisiana Light Co. [1885], 115 U. Literally, and absolutely, steamship lines are, for an Insular territory
S., 650.) This is the same police power which the United States thus situated, the arteries of commerce. If one be severed, the life-
Supreme Court says "extends to so dealing with the conditions blood of the nation is lost. If on the other hand these arteries are
which exist in the state as to bring out of them the greatest welfare protected, then the security of the country and the promotion of the
of its people." (Bacon vs. Walker [1907], 204 U-. S., 311.) For quite general welfare is sustained. Time and again, with such conditions
similar reasons, none of the provisions of the Philippine Organic confronting it, has the executive branch of the Government of the
Law could have had the effect of denying to the Government of the Philippine Islands, always later with the sanction of the judicial
Philippine Islands, acting through its Legislature, the right to branch, taken a firm stand with reference to the presence of
exercise that most essential, insistent, and illimitable of powers, the undesirable foreigners. The Government has thus assumed to act for
sovereign police power, in the promotion of the general welfare and the all-sufficient and primitive reason of the benefit and protection
the public interest. (U. S. vs. Toribio [1910], 15 Phil., 85; Churchill of its own citizens and of the self-preservation and integrity of its
and Tait vs. Raferty [1915], 32 Phil., 580; Rubi vs. Provincial Board dominion. (In re Patterson [1902], 1 Phil., 93; Forbes vs. Chuoco,
of Mindoro [1919], 39 Phil., 660.l Another notable exception Tiaco and Crossfield [1910], 16 Phil., 534; 228 U. S., ;549; In re
permits of the regulation or distribution of the public domain or the McCulloch Dick [1918], 38 Phil., 41. ) Boats owned by foreigners,
common property or resources of the people of the State, so that the particularly by such solid and reputable firms as the instant
use may be limited to its citizens. (Ex Parte Gilleti [1915], 70 Fla., claimant, might indeed traverse the waters of the Philippines for
442; McCready vs. Virginia [1876], 94 U. S., 391; Patsone vs. ages without doing any particular harm. Again, some evil-minded
Commonwealth of Pennsylvania [1914], 232 U. S., 138.) Still another foreigner might very easily take advantage of such lavish hospitality
exception permits of the limitation of employment in the to chart Philippine waters, to obtain valuable information for
construction of public works by, or for, the State or a municipality to unfriendly foreign powers, to stir up insurrection, or to prejudice
citizens of the United States or of the State. (Atkin vs. Kansas [1903], Filipino or American commerce. Moreover, under the Spanish
191 U. S., 207; Heim vs. McCall [1915], 239 U.' S., 175; Crane vs. New portion of Philippine law, the waters within the domestic
York [1915], 239 U. S., 195.) Even as to classification, it is admitted jurisdiction are deemed part of the national domain, open to public
that a State may classify with reference to the evil to be prevented; use. (Book II, Tit. IV, Ch. I, Civil Code; Spanish Law of Waters of
the question is a practical one, dependent upon experience. August 3, 1866. arts. 1. 2. 3.) Common carriers which in the
(Patsone vs. Commonwealth of Pennsylvania [1914], 232 U. S., 138.) Philippines as in the United States and other countries are, as Lord
Hale said, "affected with a public interest," can only be permitted to
To justify that portion of Act No. 2761 which permits corporations use these public waters as a privilege and under such conditions as
or companies to obtain a certificate of Philippine registry only on to the representatives of the people may seem wise. (See De Villata
condition that they be composed wholly of citizens of the Philippine vs. Stanley [1915], 32 Phil., 541.)
Islands or of the United States or both, as not infringing Philippine
In Patsone vs. Commonwealth of Pennsylvania ([1913], 232 U. S.,
138), a case hereinbefore mentioned, Justice Holmes delivering the "Obviously the question, so stated, is one of local experience, on
opinion of the United States Supreme Court said: which this court ought to be very slow to declare that the state
legislature was wrong in its facti. (Adams vs. Milwaukee, 228 U. S.,
"This statute makes it unlawful for any unnaturalized foreign-born 572, 583; 57 L. ed., 971, 977; 33 Sup. Ct. Rep., 610.) If we might trust
resident to kill any wild bird or animal except in defense of person popular speech in some states it was right; but it is enough that this
or property, and 'to that end' makes it unlawful for such foreign- court has no such knowledge of local conditions as to be able to say
born person to own or be possessed of a shotgun or rifle; with a that it was manifestly wrong. . . .
penalty of $25 and a forfeiture of the gun or guns. The plaintiff in
error was found guilty and was sentenced to pay the above "Judgment affirmed."
mentioned fine. The judgment was affirmed on successive appeals.
(231 Pa., 46; 79 Atl., 928.) He brings the case to this court on the
ground that the statute is contrary to the 14th Amendment and also We are inclined to the view that while Smith, Bell & Co Ltd., a
is in contravention of the treaty between the United States and Italy, corporation having alien stockholders, is entitled to the protection
to which latter country the plaintiff in error belongs. afforded by the-due process of law and equal protection of the laws
clause of the Philippine Bill of Rights, nevertheless, Act No. 2761 of
"Under the 14th Amendment the objection is twofold; unjustifiably the Philippine Legislature, in denying to corporations such as Smith,
depriving the alien of property, and discrimination against such Bell & Co. Ltd., the right to register vessels in the Philippines
aliens as a class. But the former really depends upon the latter, since coastwise trade, does not belong to that vicious species of class
it hardly can be disputed that if the lawful object, the protection of legislation which must always be condemned, but does fall within
wild life (Geer vs. Connecticut, 161 U. S., 519; 40 L. ed., 793; 16 Sup. authorized exceptions, notably, within the purview of the police
Ct. Rep., 600), warrants the discrimination, the means adopted for power, and so does not offend against the constitutional provision.
making it effective also might be adopted. . . .
This opinion might well be brought to a close at this point. It occurs
"The discrimination undoubtedly presents a more difficult question. to us, however, that the legislative history of the United States and
But we start with the general consideration that a state may classify the Philippine Islands, and, probably, the legislative history of other
with reference to the evil to be prevented, and that if the class countries, if we were to take the time to search it out, might disclose
discriminated against is or reasonably might be considered to similar attempts at restriction on the right to enter the coastwise
define those from whom the evil mainly is to be feared, it properly trade, and might thus furnish valuable aid by which to ascertain and,
may be picked out. A lack of abstract symmetry does not matter. if possible, effectuate legislative intention.
The question is a practical one, dependent upon experience. . . .
3. The power to regulate commerce, expressly delegated to the
"The question therefore narrows itself to whether this court can say Congress by the Constitution, includes the power to nationalize
that the legislature of Pennsylvania was not warranted in assuming ships built and owned in the United States by registries and
as its premise for the law that resident unnaturalized aliens were enrollments, and the recording of the muniments of title of
the peculiar source of the evil that it desired to prevent. (Barrett vs. American vessels. The Congress "may encourage or it may entirely
Indiana, 229 U. S., 26, 29; 57 L. ed., 1050, 1052; 33 Sup. Ct. Rep., prohibit such commerce, and it may regulate in any way it may see
692.) fit between these two extremes." (U. S. vs. Craig [1886], 28 Fed.,
795; Gibbons vs. Ogden [1824], 9 Wheat., 1; The Passenger Cases of any of the states thereof. The law, as amended, made possible the
[1849], 7 How., 283.) deduction that a vessel belonging to a domestic corporation was
entitled to registry or enrollment even though some stock of the
Acting within the purview of such power, the first Congress of the company be owned by aliens. The right of ownership of stock in a
United States had not been long convened before it enacted on corporation was thereafter distinct from the right to hold the
September 1, 1789, "An Act for Registering and Clearing Vessels, property by the corporation. (Humphreys vs. McKissock [1890], 140
Regulating the Coasting Trade, and for other purposes." Section 1 of U. S., 304; Queen vs. Arnaud [1846], 9 Q. B., 806; 29 Op. Atty.-Gen.
this law provided that for any ship or vessel to obtain the benefits of [U. S.], 188.)
American registry, it must belong wholly to a citizen or citizens of
the United States "and no other." (1 Stat. at L., 55.) That Act was On American occupation of the Philippines, the new government
shortly after repealed, but the same idea was carried into the Acts of found a substantive law in operation in the Islands with a civil law
Congress of December 31, 1792 and February 18, 179.3. (1 Stat. at history which it wisely continued in force. Article fifteen of the
L., 287, 305.) Section 4 of the Act of 1792 provided that in order to Spanish Code of Commerce permitted any foreigner to engage in
obtain the registry of any vessel, an oath shall be taken and Philippine trade if he had legal capacity to do so under the laws of
subscribed by the owner, or by one of the owners thereof, before his nation. When the Philippine Commission came to enact the
the officer authorized to make such registry, declaring, "that there is Customs Administrative Act (No. 355) in 1902, it returned to the old
no subject or citizen of any foreign prince or state, directly or American policy of limiting the protection and flag of the United
indirectly, by way of trust, confidence, or otherwise, interested in States to vessels owned by citizens of the United States or by native
such vessel, or in the profits or issues thereof." Section 32 of the Act inhabitants of the Philippine Islands. (Sec. 117.) Two years later, the
of 1793 even went so far as to say "that if any licensed ship or vessel same body reverted to the existing Congressional law by permitting
shall be transferred to any person who is not at the time of such certificates to be issued to a citizen of the United States or to a
transfer a citizen of and resident within the United States, . . . every corporation or company created under the laws of the United States
such vessel with her tackle, apparel, and furniture, and the cargo or of any state thereof or of the Philippine Islands. (Act No. 1235,
found on board her, shall be forfeited." In case of alienation to a sec. 3. ) The two administrative codes repeated the same provision
foreigner, Chief Justice Marshall said that all the privileges of an with the necessary amplification of inclusion of citizens or native
American bottom were ipso facto forfeited. (U. S. vs. Willings and inhabitants of the Philippine Islands (Adm. Code of 1916, sec. 1345;
Francis [1807], 4 Cranch, 48.) Even as late as 1873, the Attorney- Adm. Code of 1917, sec. 1172). And now Act No. 2761 has returned
General of the United States was of the opinion that under the to the restrictive idea of the original Customs Administrative Act
provisions of the Act of December 31, 1792 no vessel in which a which in turn was merely a reflection of the statutory language of
foreigner is directly or indirectly interested can lawfully be the first American Congress.
registered as a vessel of the United States. (14 Op. Atty.-Gen. [U. S.],
340.) Provisions such as those in Act No. 2761, which deny to foreigners
the right to a certificate of Philippine registry, are thus found not to
These laws continued in force without contest, although possibly be as radical as a first reading would make them appear.
the Act of March 3, 1825, may have affected them until amended by
the Act of May 28, 1896 (29 Stat. at L., 188) which extended the Without any subterfuge, the apparent purpose of the Philippine
privileges of registry from vessels wholly owned by a citizen or Legislature is seen to be to enact an anti-alien shipping act. The
citizens of the United States to corporations created under the laws ultimate purpose of the Legislature is to encourage Philippine ship-
building. This, without doubt, has, likewise, been the intention of the safeguarding the country and of promoting its prosperity? Quite
United States Congress in passing navigation or tariff laws on similarly, the Philippine Legislature made up entirely of Filipinos,
different occasions. The object of such a law, the United States representing the mandate of the Filipino people and the guardian of
Supreme Court once said, was to encourage American trade, their rights, acting under practically autonomous powers, and
navigation, and ship-building by giving American ship-owners imbued with a strong sense of Philippinism, has desired for these
exclusive privileges. ( Old Dominion Steamship Co. vs. Virginia Islands safety from foreign interlopers, the use of the common
[1905], 198 U. S., 299; Kent's Commentaries, Vol. 3, p. 139.) property exclusively by its citizens and the citizens of the United
States, and protection for the common good of the people. Who can
In the concurring opinion of Justice Johnson in Gibbons vs. Ogden say, therefore, especially can a court, that with all the facts and
([1824], 9 Wheat., 1) is found the following: circumstances affecting the Filipino people before it, the Philippine
Legislature has erred in the enactment of Act No. 2761?
"Licensing acts, in fact, in legislation, are universally restraining
acts; as, for example, acts licensing gaming houses, retailers of Surely, the members of the judiciary are not expected to live apart
spirituous liquors, etc. The act, in this instance, is distinctly of that from active life, in monastic seclusion amidst dusty tomes and
character, and forms part of an extensive system, the object of ancient records, but, as keen spectators of passing events and alive
which is to encourage American shipping, and place them on an to the dictates of the general - the national - welfare, can incline the
equal footing with the shipping of other nations. Almost every scales of their decisions in favor of that solution which will most
commercial nation reserves to its own subjects a monopoly of its effectively promote the public policy. All the presumption is in favor
coasting trade; and a countervailing privilege in favor of American of the constitutionality of the law and without good and strong
shipping is contemplated, in the whole legislation of the United reasons, courts should not attempt to nullify the action of the
States on this subject. It is not to give the vessel an American Legislature. "In construing a statute enacted by the Philippine
character, that the license is granted; that effect has been correctly Commission (Legislature), we deem it our duty not to give it a
attributed to the act of her enrollment. But it is to confer on her construction which would be repugnant to an Act of Congress, if the
American privileges. a contra distinguished from foreign; and to language of the statute is fairly susceptible of another construction
preserve the Government from fraud by foreigners, in not in conflict with the higher law." (In re Guariña [1913], 24 Phil.,
surreptitiously intruding themselves into the American commercial 36; U. S. vs. Ten Yu [1912], 24 Phil., 1.) That is the true construction
marine, as well as frauds upon the revenue in the trade coastwise which will best carry legislative intention into effect.
that this whole system is projected."
With full consciousness of the importance of the question, we
nevertheless are clearly of the opinion that the limitation of
The United States Congress in assuming its grave responsibility of domestic ownership for purposes of obtaining a certificate of
legislating wisely for a new country did so imbued with a spirit of Philippine registry in the coastwise trade to citizens of the
Americanism. Domestic navigation and trade, it decreed, could only Philippine Islands, and to citizens of the United States, does not
be carried on by citizens of the United States. If the representatives violate the provisions of paragraph 1 of section 3 of the Act of
of the American people acted in this patriotic manner to advance Congress of August 29, 1916. No treaty right is relied upon. Act No.
the national policy, and if their action was accepted without protest 2761 of the Philippine Legislature is held valid and constitutional.
in the courts, who can say that they did not enact such beneficial
laws under the all-pervading police power, with the prime motive of The petition for a writ of mandamus is denied, with costs against
the petitioner. So ordered. compensation, for forty days every year. The time spent
in the reconstruction of these buildings was counted as a
Arellano, C. J., Torres, Johnson, Araullo, Street, Avanceña and Moir, part of the forty days. The material necessary was brought
JJ., concur. and paid for in part by the parish priest from the funds of
the church and in part was donated by certain individuals
of the pueblo. After the completion of the church it was
always administered, until November 14, 1902, by a priest
REV. JORGE BARLIN, in his capacity as apostolic of a Roman Catholic Communion and all the people of the
administrator of this vacant bishopric and legal pueblo professed that faith and belonged to that church.

representative of the general interests of the The defendant, Ramirez, having been appointed by the
Roman Catholic Apostolic Church in the diocese of plaintiff parish priest, took possession of the church on the
5th of July, 1901. he administered it as such under the
Nueva Caceres, plaintiff-appellee, vs. P. VICENTE orders of his superiors until the 14th day of November,
RAMIREZ, ex-rector of the Roman Catholic 1902. His successor having been then appointed, the latter
made a demand on this defendant for the delivery to him
Apostolic Parochial Church of Lagonoy, AND THE of the church, convent, and cemetery, and the sacred
MUNICIPALITY OF LAGONOY, defendants- ornaments, books, jewels, money, and other property of
the church. The defendant, by a written document of that
appellants. date, refused to make such delivery. That document is as
G.R. No. 2832 | 1906-11-24 follows:

DECIS ION "At 7 o'clock last night I received through Father Agripino
Pisino your respected order of the 12th instant, wherein I
WILLARD, J.: am advised of the appointment of Father Pisino as acting
parish priest of this town, and directed to turn over to him
There had been priests of the Roman Catholic Church in this parish and to report to you at the vicarage. In reply
the pueblo of Lagonoy, in the Province of Ambos thereto, I have the honor to inform you that the town of
Camarines, since 1839. On the 13th of January, 1869, the Lagonoy, in conjunction with the parish priest thereof, has
church and convent were burned. They were rebuilt seen fit to sever connection with the Pope at Rome and his
between 1870 and 1873. There was evidence that this was representatives in these Islands, and join the Filipino
done by the order of the provincial governor. The labor Church, the head of which is at Manila. This resolution of
necessary for this reconstruction was performed by the the people was reduced to writing and triplicate copies
people of the pueblo the direction of the cabeza de made, of which I beg to inclose a copy herewith.
barangay. Under the law then in force, each man in the
pueblo was required to work for the government, without "For this reason I regret to inform you that I am unable to
obey your said order by delivering to Father Agripino return to his control. In view of this, and subject to this
Pisino the parish property of Lagonoy which, as I condition, the reverend parish priest, together with the
understand, is now outside of the control of the Pope and people of the town, unanimously join in declaring that
his representatives in these Islands. May God guard you from this date they separate themselves from the
many years. obedience and control of the Pope and join the Filipino
National Church. This assembly and the reverend parish
"Lagonoy, November 14, 1902. priest have accordingly adopted this resolution written in
triplicate, and resolved to send a copy thereof to the civil
(Signed) "VICENTE RAMIREZ. government of this province for its information, and do
"RT. REV. VICAR OF THIS DISTRICT." sign the same below. Vicente Ramirez, Francisco Israel,
Ambrosio Bocon, Florentino Relloso, Macario P. Ledesma,
The document, a copy of which is referred to in this letter, Cecilio Obias, Balbino Imperial, Juan Preseñada, Fernando
is as follows: Deudor, Mauricio Torres, Adriano Sabater."

"LAGONOY, November, 9, 1902. At the meeting at which the resolution spoken of in this
document was adopted, there were present about 100
"The municipality of this town and some of its most persons of the pueblo. There is testimony in the case that
prominent citizens having learned through the papers the population of the pueblo was at that time 9,000 and
from the capital of these Islands of the constitution of the that all but 20 of the inhabitants were satisfied with the
Filipino National Church, separate from the control of the action there taken. Although it is of no importance in the
Pope at Rome by reason of the fact that the latter has case, we are inclined to think that the testimony to this
refused to either recognize or grant the rights to the effect merely means that about 100 of the principal men
Filipino clergy which have many times been urged, and it of the town were in favor of the resolution and about 20
appearing to us that the reasons advanced why such of such principal men were opposed to it. After the 14th of
offices should be given to the Filipino clergy are evidently November, the defendant, Ramirez, continued in the
well-founded, we have deemed it advisable to consult with possession of the church and other property and
the parish priest of this town as to whether it would be administered the same under the directions of his
advantageous to join the said Filipino Church and to superior, the Obispo Maximo of the Independent Filipino
separate from the control of the Pope as long as he Church. The rites and ceremonies and the manner of
continues to ignore the rights of the said Filipino clergy, worship were the same after the 14th day of November as
under the conditions that there will be no change in the they were before, but the relations between the Roman
articles of faith, and that the sacraments and other Catholic Church and the defendant had been entirely
dogmas will be recognized and particularly that of the severed.
immaculate conception of the mother of our Lord. But the
moment the Pope at Rome recognizes and grants the In January, 1904, the plaintiff brought this action against
rights heretofore denied to the Filipino clergy we will the defendant, Ramirez, alleging in his amended complaint
that the Roman Catholic Church was the owner of the presented their petition for intervention in this case. In
church building, the convent, cemetery, the books, fact, the witnesses for the defense, when they speak of
money, and other property belonging thereto, and asking the ownership of the buildings, say that they are owned
that it be restored to the possession thereof and that the by the people of the pueblo, and one witness, the
defendant render an account of the property which he had president, said that the municipality as a corporation had
received and which was retained by him, and for other nothing whatever to do with the matter. That the
relief. resolution adopted on the 14th of November, and which
has been quoted above, was not the action of the
The answer of the defendant, Ramirez, in addition to a municipality, as such, is apparent from an inspection
general denial of the allegation of the complaint, admitted thereof.
that he was in the possession and administration of the
property described therein with the authority of the The witnesses for the defenses speak of a delivery of the
municipality of Lagonoy and of the inhabitants of the church by the people of the pueblo to the defendant,
same, who were the lawful owners of the said property. Ramirez, but there is no evidence in the case of any such
After this answer had been presented, and on the 1st day delivery. Their testimony in regard to the delivery always
of November, 1904, the municipality of Lagonoy filed a refers to the action taken on the 14th of November, a
petition asking that it be allowed to intervene in the case record of which appears that in the document above
and join with the defendant, Ramirez, as a defendant quoted. It is apparent that the action taken consisted
therein. This petition been granted, the municipality of the simply in separating themselves from the Roman Catholic
1st day of December filed an answer in which it alleged Church, and nothing is said therein in reference to the
that the defendant, Ramirez, was in possession of the material property then in possession of the defendant,
property described in the complaint under the authority Ramirez.
and with the consent of the municipality of Lagonoy and
that such municipality was the owner thereof. There are several grounds upon which this judgment must
be affirmed.
Plaintiff answered this complaint, or answer in
intervention, and the case was tried and final judgment in (1) As to the defendant, Ramirez, it appears that he took
entered therein in favor of the plaintiff and against the possession of the property as the servant or agent of the
defendants. The defendants then brought the case here by plaintiff. The only right which he had to the possession at
a bill of exceptions. the time he took it, was the right which was given to him
by the plaintiff, and he took possession under the
That the person in the actual possession of the church and agreement to return that possession whenever it should
other property described in the complaint is the defendant, be demanded of him. Under such circumstances he will not
Ramirez, is plainly established by the evidence. It does not be allowed, when the return of such possession is
appear that the municipality, as a corporate body, ever demanded by him the plaintiff, to say that the plaintiff is
took any action in reference to this matter until they not the owner of the property and is not entitled to have
it delivered back to him. The principle of law that a tenant and who can not produce any written evidence of title, the
can not deny his landlord's title, which is found in section mere fact that the defendant is in possession does not
333, paragraph 2, of the Code of Civil Procedure, and also entitle the defendant to retain that possession. In order
in the Spanish law, is applicable to a case of this kind. An that he may continue in possession, he must show a better
answer of the defendant, Ramirez, in which he alleged that right thereto.
he himself was the owner of the property at the time he
received it from the plaintiff, or in which he alleged that The evidence in this case does not show that the
the pueblo was the owner of the property at that time, municipality has, as such, any right of whatever in the
would constitute no defense. There is no claim made by property in question. It has produced no evidence of
him that since the delivery of the possession of the ownership. Its claim of ownership is rested in its brief in
property to him by the plaintiff he has acquired the title this court upon the following propositions: That the
thereto by other means, nor does he is own behalf make property in question belonged prior to the treaty of Paris
any claim whatever either to the property or to the to the Spanish Government; that by the treaty of Paris the
possession thereof. ownership thereof passed to the Government of the United
States; that by section 12 of the act of Congress of July 1,
(2) The municipality of Lagonoy, in its answer, claims as 1902, such property was transferred to the Government
such, to be the owner of the property. As we have said of the Philippine Islands, and that by the circular of that
before, the evidence shows that it never was in the Government, dated November 11, 1902, the ownership
physical possession of the property. But waiving this point and the right to the possession of this property passed to
and assuming that the possession of Ramirez, which he the municipality of Lagonoy. If, for the purposes of the
alleges in his answer is the possession of the municipality, argument, we should admit that the other propositions are
gives the municipality the rights of a possessor, the true, there is no evidence whatever to support the last
question still arises, Who has the better right to the proposition, namely that the Government of the Philippine
present possession of the property? The plaintiff, in 1902, Islands has transferred the ownership of this church to the
had been in the lawful possession thereof for more than municipality of Lagonoy. We have found no circular of the
thirty years and during all that time its possession had date above referred to. The one of February 10, 1903,
never been questioned or disturbed. That possession has which is probably the one intended, contains nothing that
been taken away from it and it has the right now to recover indicates any such transfer. As to the municipality of
the possession from the persons who have so deprived it Lagonoy, therefore, it is very clear that it has neither title,
of such possession, unless the latter can show that they ownership, nor right of possession.
have a better right thereto. This was the preposition which
was discussed and settled in the case of Bishop of Cebu (3) We have said that it would have no such title or
vs. Mangaron, 1 No. 1748, decided June 1, 1906. That ownership ever admitting that the Spanish Government
decision holds that as against one who has been in was the owner of the property and it has passed by the
possession for the length of the plaintiff has been in treaty of Paris to the American Government. But this
possession, and who had been deprived of his possession, assumption is not true. As a matter of law, the Spanish
Government at the time the treaty of peace was signed,
was not the owner of this property, nor of any other Law 11 of the same title is as follows:
property like it, situated in the Philippine Islands.
"We command that the part of the tithes which belongs to
It does not admit of doubt that from the earliest times the the fund for the erection of churches shall be given to their
parish churches in the Philippine Islands were built by the superintendents to be expended for those things
Spanish Government. Law 2, title 2, book 1, of the necessary for these churches with the advice of the
Compilation of the Laws of the Indies is, in part, as follows: prelates and officials, and by their warrants, and not
otherwise. And we request and charge the archbishops
"Having erected all the churches, cathedrals, and parish and bishops not to interfere in the collection and
houses of the Spaniards and natives of our Indian disbursement thereof, but to guard these structures."
possessions from their discovery at the cost and expense
of our royal treasury, and applied for their service and Law 4, title 3, book 6, is as follows:
maintenance the part of the tithes belonging to us by
apostolic concession according to the division we have "In all settlements, even though the Indians are few, there
made." shall be erected a church where mass can be decently
held, and it shall have a donor with a key, notwithstanding
Law 3 of the same title to the construction of parochial the fact that it be the subject to or separate from a parish."
churches such as the one in question. That law is as
follows: Not only were all the parish churches in the Philippines
erected by the King and under his direction, but it was
"The parish churches which was erected in Spanish towns made unlawful to erect a church without the license of the
shall be of durable and decent construction. Their costs King. This provision is contained in Law 2, title 6, book 1,
shall be divided and paid in three parts: One by our royal which is as follows:
treasury, another by the residents and Indian
encomenderos of the place where such churches are "Whereas it is our intention to erect, institute, found, and
constructed, and the other part by the Indians who abide maintain all cathedrals, parish churches, monasteries,
there; and if within the limits of a city, village, or place votive hospitals, churches, and religious and pious
there should be any Indians incorporated to our royal establishments where they are necessary for the teaching,
crown, we command that for our part there be contributed propagation, and preaching of the doctrine of our sacred
the same amount as the residents and encomenderos, Roman Catholic faith, and to aid to this effect with out
respectively, contribute; and the residents who have no royal treasury whenever possible, and to receive
Indians shall also contribute for this purpose in accordance information of such places where they should be founded
with their stations and wealth, and that which is so given and are necessary, and the ecclesiastical patronage of all
shall be deducted from the share of the Indians should our Indies belonging to us:
pay."
"We command that there shall not be erected, instituted, the Philippines.
founded, or maintained any cathedral, parish church,
monastery, hospital, or votive churches, or other pious or This church, and other churches similarly situated in the
religious establishment without our express permission as Philippines, having been erected by the Spanish
is provided in Law 1, title 2, and Law 1, title 3, of this book, Government, and under its direction, the next question to
notwithstanding any permission heretofore given by our be considered is, To whom did these churches belong?
viceroy or other ministers, which in this respect we revoke
and make null, void, and of no effect." Title 28 of the third partida is devoted to the ownership of
things and, after discussing what can be called public
By agreement at an early date between the Pope and the property and what can be called private property, speaks,
Crown of Spain, all tithes in the Indies were given by the in Law 12, of those things which are sacred, religious, or
former to the latter and the disposition made the King of holy. That law is as follows:
the fund thus created is indicated by Law 1, title 16, book Law XII. ---- HOW SACRED OR RELIGIOUS THINGS CAN
1, which is as follows: NOT BE OWNED BY ANY PERSON.

"Whereas the ecclesiastical tithes from the Indies belong "No sacred, religious, or holy thing, devoted to the service
to us by the apostolic concessions of the supreme pontiffs, of God, can be the subject of ownership by any man, nor
we command the officials of our royal treasury of those can it be considered as included in his property holdings.
provinces to collect and cause to be collected all tithes due Although the priests may have such things in their
and to become due from the crops and flocks of the possession, yet they are not the owners thereof. They,
residents in the manner in which it has been the custom hold them thus as guardians or servants, or because they
to pay the same, and from these tithes the churches shall have the care of the same and serve God in or without
be provided with competent persons of good character to them. Hence they were allowed to take from the revenues
serve them and with all ornaments and things which may of the church and lands what was reasonably necessary
be necessary for divine worship, to the end that these for their support; the balance, belonging to God, was to
churches may be well served and equipped, and we shall be devoted to pious purposes, such as the feeding and
be informed of God, our Lord; this order shall be observed clothing of the poor, the support of orphans, the marrying
where the contrary has not already been directed by us in of poor virgins to prevent their becoming evil women
connection with the erection of churches." because of their poverty, and for the redemption of
captives and the repairing of the churches, and the buying
That the condition of things existing by virtue of the Laws of chalices, clothing, books, and others things which they
of the Indies was continued to the present time is indicated might be in need of, and other similar charitable
by the royal order of the 31st of January, 1856, and by purposes."
the royal order of the 13th of August, 1876, both relating
to the construction and repair of churches, there being And then taking up for consideration the first of the classes
authority for saying that the latter order was in force in in to which this law has divided these things, it defines in
Law 13, title 28, third partida, consecrated things. That "Divine things are those which are either directly or
law is as follows: indirectly established by God for his service and
sanctification of men and which are governed by divine or
"Sacred things, we say, are those which are consecrated canonical laws. This makes it necessary to divide them into
by the bishops, such as churches, the altars therein, spiritual things, which are those which have a direct
crosses, chalices, censers, vestments, books, and all other influence on the religious redemption of man such as the
things which are in tended for the service of the church, sacrament, prayers, fasts, indulgences, etc., and
and the title to these things can not be alienated except in corporeal or ecclesiastical, which are those means more or
certain specific cases as we have already shown in the first less direct for the proper religious salvation of man.
partida of this book by the laws dealing with this subject.
We say further that even where a consecrated church is "7. First Group.----Divine things. B. Corporeal or
razed, the ground upon which it formerly stood shall ecclesiastical things (sacred, religious, holy, and temporal
always be consecrated ground. But if any consecrated belonging to the church). Corporeal or ecclesiastical things
church should fall into the hands of the enemies of our are so divided.
faith it shall there and then cease to be sacred as long as
the enemy has it under control, although once recovered "(a) Sacred things are those devoted to God, religion, and
by the Christians, it will again become sacred, reverting to worship in general, such as temples, altars, ornaments,
its condition before the enemy seized it and shall have all etc. These things can not be alienated except for some
the right and privileges formerly belonging to it." pious purpose and in such cases as are provided for in the
laws, according to which their control pertains to the
That the principles of the partida in reference to churches ecclesiastical authorities, and in so far as their use is
still exist is indicated by Sanchez Roman, whose work on concerned, to the believers and the clergy. (2 Derecho
the Civil Law contains the following statement: Civil Español, Sanchez Roman, p. 480; 8 Manresa,
Commentaries on the Spanish Civil Code, p. 636; 3
"First Group.----Spiritual and corporeal or ecclesiastical. A. Alcubilla, Diccionario de la Administracion Española, p.
Spiritual. ---- From early times distinction has been made 486.)"
by authors and by law between things governed by divine
law, called divine, and those governed by human law, The partidas defined minutely what things belonged to the
called human, and although the former can not be the public in general and what belonged to private persons. In
subject of civil juridical relations, their nature and species the first group churches are not named. The present Civil
should be ascertained either to identify them and exclude Code declares in article 338 that property is of public or
them from such relations or because they furnish a private ownership. Article 339, which defines public
complete explanation of the foregoing tabulated property, is as follows:
statement, or finally because the laws of the partida deal
with them. "Property of public ownership is ----
 belong to the State and are public property. That article is
"1. That destined to the public use, such as roads, canals, as follows:
rivers, torrents, ports, and bridges constructed by the
State, and banks, shores, roadsteads, and that of similar "There shall be excepted from the record required by
character. article 2 of the law:

"2. That belonging exclusively to the state without being "First.----Property which belongs exclusively to the
for public use and which is destined to some public service, eminent domain of the State, and which is for the use of
or to the development of the national wealth, such as all, such as the shores of the sea, islands, rivers and their
walls, fortresses, and other works for the defense of the borders, wagon roads, and the roads of all kinds, with the
territory, and mines, until their concession has been exception of railroads; streets, parks, public promenades,
granted." and commons of towns, provided they are not lands of
common profit to the inhabitants; walls of cities and parks,
The code also defines the property of provinces and of ports, and roadsteads, and any other analogous property
pueblos, and in defining what property is of public use, during the time they are in common and general use,
article 344 declares as follows: always reserving the servitudes established by law on the
shores of the sea and borders of navigable rivers.
"Property for public use in provinces and in towns
comprises the provincial and town roads, the squares, "Second.----Public temples dedicated to the Catholic
streets, fountains, and public waters, the promenades, faith."
and public works of general service supported by the said
towns or provinces. A reading of this article shows that far from proving that
churches belong to the State and to the eminent domain
"All other property possessed by either is patrimonial, and thereof, it proves the contrary, for, if they had belonged
shall be governed by the provisions of this code, unless to the State, they would have been included in the first
otherwise prescribe in special laws." paragraph instead of being placed in a paragraph by
themselves.
It will be noticed that in either one of these articles is any
mention made of churches. When the Civil Code undertook The truth is that, from the earliest times down to the
to define those things in a pueblo which were for the cession of the Philippines to the United States, churches
common use of the inhabitants of the pueblo, or which and other consecrated objects were considered outside of
belonged to the State, while it mentioned a great many the commerce of man. They were not public property, nor
other things, it did not mention churches. could they be subjects of private property in the sense that
any private person could the owner thereof. They
It has been said that article 25 of the Regulations for the constituted a kind of property distinctive characteristic of
Execution of the Mortgage Law indicates that churches which was that it was devoted to the worship of God.
 had constructed them. These laws relate to the right of
But, being material things was necessary that some one presentation to ecclesiastical charges and offices. For
should have the care and custody of them and the example, Law 49 of the title commences as follows:
administration thereof, and the question occurs, To whom,
under the Spanish law, was intrusted that possession and "Because the patronage and right of presentation of all
administration? For the purposes of the Spanish law there archbishops, bishops, dignitaries, prevents, curates, and
was only one religion. That was the religion professed by doctrines and all other beneficiaries and ecclesiastical
the Roman Catholic Church. It was for the purposes of that offices whatsoever belong to us, no other person can
religion and for the observance of its rites that this church obtain or possess the same without our presentation as
and all other churches in the Philippines were erected. The provided in Law 1 and other laws of this title."
possession of the churches, their care and custody, and
the maintenance of religious worship therein were Title 15 of the first partida treats of the right of patronage
necessarily, therefore, intrusted to that body. It was, by vesting in private persons, but there is nothing in any one
virtue of the laws of Spain, the only body which could of its fifteen laws which in any way indicates that the
under any circumstances have possession of, or any private patron is the owner of the church.
control over, any church dedicated to the worship of God.
By virtue of those laws this possession and right of control When it is said that this church never belonged to the
were necessarily exclusive. It is not necessary or Crown of Spain, it is not intended to say that the
important to give any name to this right of possession and Government and had no power over it. It may be that by
control exercised by the Roman Catholic Church in the virtue of that power of eminent domain which is
church buildings of the Philippines prior to 1898. It is not necessarily resides in every government, it might have
necessary to show that the church as a juridical person appropriated this church and other churches, and private
was the owner of the buildings. It is sufficient to say that property of individuals. But nothing of this kind was ever
this right to the exclusive possession and control of the attempted in the Philippines.
same, for the purposes of its creation, existed.
It, therefore, follows that in 1898, and prior to the treaty
The right of patronage, existing in the King of Spain with of Paris, the Roman Catholic Church had by law the
reference to the churches in the Philippines, did not give exclusive right to the possession of this church and it had
him any right to interfere with the material possession of the legal right to administer the same for the purposes for
these buildings. which the building was consecrated. It was then in the full
and peaceful possession of the church with the rights
Title 6 of book 1 of the Compilation of the laws of the aforesaid. That these rights were fully protected by the
Indies treats Del Patronazgo Real de las Indias. There is treaty of Paris is very clear. That treaty, in article 8,
nothing in any one of the fifty-one laws which compose provides, among other things, as follows:
this title which in any way indicates that the King of Spain
was the owner of the churches in the Indies because he
"And it is hereby declared that the relinquishment or such churches and engaged in the education and
cession, as the case may be, to which the preceding conversion of their Indian parishioners, and they shall not
paragraph refers, can not in any respect impair the be alienated or devoted to any other purpose."
property or rights which by law belong to the peaceful
possession of property of all kinds, or provinces, The evidence in this case makes no showing in regard to
municipalities, public or private establishments, the cemetery. It is always mentioned in connection with
ecclesiastical or civic bodies, or any other associations the church and convent and no point is made by the
having legal capacity to acquire and possess property in possession of the church and convent, he is not also
the aforesaid territories renounced or ceded, or of private entitled to recover possession of the cemetery. So, without
individuals, or whatsoever nationality such individuals discussing the question as to whether the rules applicable
may be." to churches are all respects applicable to cemeteries, we
hold for the purpose of this case that the plaintiff has the
It is not necessary, however, to invoke the provisions of same right to the cemetery that he has to the church.
that treaty. Neither the Government of the United States,
nor the Government of these Islands, has ever attempted (4) It is suggested by the appellant that the Roman
in any way to interfere with the rights which the Roman Catholic Church has no legal personality in the Philippine
Catholic Church had in this building when Spanish Islands. This suggestion, made with reference to an
sovereignty ceased in the Philippines. Any interference institution which antedates by almost a thousand years
that has resulted has been caused by private individuals, any other personality in Europe, and which existed "when
acting without any authority from the Government. Grecian eloquence still flourished in Antioch, and when
Against such interference by private persons with the idols were still worshiped in the temple of Mecca," does
rights of others, redress is given in the courts of justice not require serious consideration. In the preamble to the
without reference to the provisions of the treaty of Paris. budget relating to ecclesiastical obligations, presented by
Montero Rios to the Cortes on the 1st of October 1871,
No point is made in the brief of the appellant that any speaking of the Roman Catholic Church, he says:
distinction should be made between the church and the
convent. The convent undoubtedly was annexed to the "Persecuted as an unlawful association since the early
church and, as to it, the provisions of Law 19, title 2, book days of its existence up to the time of Galieno, who was
1, of the Compilation of the Laws of the Indies would the first of the Roman emperors to admit it among the
apply. That law is as follows: juridical entities protected by the laws of the Empire, it
existed until then by the mercy and will of the faithful and
"We command that the Indians of each town or barrio shall depended for such existence upon pious gifts and
construct such houses as may be deemed sufficient in offerings. Since the latter half of the third century, and
which the priests of such towns or barrios may live more particularly since the year 313, when Constantine,
comfortably adjoining the parish church of the place where by the edict of Milan, inaugurated an era of protection for
that may be built for the benefit of the priests in charge of the church, the latter gradually entered upon the exercise
of such rights as were required for the acquisition, I accept the argument and authority of the opinion of the
preservation, and transmission of property the same as court in so far as it finds: That the Roman Catholic Church
any other juridical entity under the laws of the Empire. (3 is a juridical entity in the Philippine Islands; that the
Dictionary of Spanish Administration, Alcubilla, p. 211. defendant, Ramirez, can not and should not be permitted
See also the royal order of the 4th of December, 1890, 3 in this action to deny the plaintiff's right to the possession
Alcubilla, 189.)" of the property in question, because he can not be heard
to set up title thereto in himself or a third person, at least
The judgment of the court below is affirmed, with the costs until he has first formally surrendered it to the plaintiff who
of this instance against the appellant. After the expiration intrusted it to his care; that the municipality of Lagonoy
of twenty days from the date hereof let judgment be has failed to show by evidence of record that it is or ever
entered in accordance herewith, and ten days thereafter was in physical possession of the property in question; and
the record be remanded to the court below for execution. that the possession of the defendant Ramirez, can not be
So ordered. relied upon as the possession of the municipality because
the same reason which estops Ramirez from denying the
Arellano, C.J., Torres, Mapa, and Tracey, JJ., concur. right of possession in the plaintiff estops any other person
claiming possession through him from denying that right.
Johnson, J., reserves his vote. I agree, furthermore, with the finding that the defendant
municipality failed to establish a better right to the
Separate Opinions possession than the plaintiff in this action, because,
claiming to be the owner by virtue of a grant from the
CARSON, J., concurring in the result: Philippine Government, it failed to establish the existence
of such grant; and because, furthermore, it was shown
I am in entire accord with the majority of the court as to that the plaintiff or his predecessors had been in
the disposition of this case, but I can not adopt the possession and control of the property in question for a
reasoning by which some of the conclusions appear to long period of years prior to the treaty of Paris by unlawful
have been obtained, nor accept without reserve all of the authority of the King of Spain, and that since the
propositions laid down in the majority opinion. sovereignty of these Islands has been transferred to the
United States the new sovereign has never at any time
Profoundly as I respect the judgment of my associates, divested or attempted to divest the plaintiff of this
and distrustful as I ought to be of my own, the possession and control.
transcendant importance of the issues involved seems to
impose upon me the duty of writing a separate opinion and Thus far I am able to accept the reasoning of the majority
stating therein as clearly as may be the precise grounds opinion, and these propositions, supported as they are by
upon which I base my assent and the reasons which forbid the law and the evidence in this case, completely dispose
my acceptance of the majority opinion in its entirety. of the question before us and establish the right of the
plaintiff to a judgment for possession.
 the United States nor the Philippine Government had ever
I am not prepared, however, to give my assent to the made, or attempted to make, such transfer, and in making
proposition that prior to the Treaty of Paris "The King of its finding it completely, conclusively, and finally disposes
Spain was not the owner of the property in question nor of defendants' claim of ownership.
of any other property like it situated in the Philippine
Islands," and inferentially that the United States is not now All the acts of the Government of the United States and of
the owner thereof and has no property rights therein other the present Government of the Philippine Islands which
than, perhaps, the mere right of eminent domain. can have any relation to the property in question are
I decline to affirm this proposition, first, because it is not before us, and so short a period of years has elapsed since
necessary in the decision of this case; and second, the transfer of the sovereignty of these Islands to the
because I am of opinion that, in the unlimited and United States that it is possible to demonstrate with the
unrestricted sense in which it is stated in the majority utmost certainty that by no act of the United States or of
opinion, it is inaccurate and misleading, if not wholly the Government of the Philippine Islands has the
erroneous. ownership and possession of this property been conferred
upon the defendant municipality; it is a very different
That it is not necessary for the proper disposition of this undertaking, however, to review the legislation of Spain
case will be apparent if we consider the purpose for which for the three centuries of her Philippine occupation for the
it is introduced in the argument and the proposition which purpose of deciding the much-vexed question of the
it is intended to controvert. As stated in the majority respective property rights of the Spanish sovereign and
opinion, the claim of ownership of the defendant the Roman Catholic Church in State-constructed and
municipality ---- State-aided churches in these Islands; and if I am correct
"Is rested upon the following propositions: That the in my contention that a holding that the King of Spain was
property in question belonged, prior to the treaty of Paris, not." and, inferentially, that the Government of the United
to the Spanish Government; that by the treaty of Paris the States is not, "the owner of this property or any other
ownership of thereof passed to the Government of the property like it is situated in the Philippine Islands" is not
United States; that by article 12 of the act of Congress of necessary for the full, final, and complete determination
July 1, 1902, such property was transferred to the of the case at bar, then I think that this court should
Government of the Philippine Islands, and that by a refrain from making so momentous a finding in a case
circular of that Government dated November 11, 1902, wherein the United States is not a party and has never had
the ownership and the right to the possession of this an opportunity to be heard.
property passed to the municipality of Lagonoy."
But the mere fact that a finding that the King of Spain had
It is evident that if any of these propositions is successfully no right of ownership in this property which could pass to
controverted, the defendants' claim of ownership must fall the United States under the provisions of the treaty of
to the ground. The majority opinion finds (and I am entire Paris is not necessary in my opinion for the disposition of
accord as to this finding) that neither the Government of the case at bar, would not impose upon me the duty of
writing a separate opinion if it were in fact and a law a it can be considered as included in his property holdings.
correct holding. I am convinced, however, that when Although the priests may have such things in their
stated without limitations or restrictions, as it appears in possession, yet they are not the owners thereof. They hold
the majority opinion, it is inaccurate and misleading, and them thus as guardians or servants, or because they have
it may not be improper, therefore, to indicate briefly my the care of the same and serve God in or with them. Hence
reasons for doubting it. they were allowed to take from the Revenues of the church
and lands what was reasonably necessary for their
As stated in the majority opinion, "it does not admit of support; the balance, belonging to God, was to be devoted
doubt that the parish churches in the Philippines were built to pious purposes, such as the feeding and clothing of the
by the Spanish Government," and it would seem therefore poor, the support of orphans, the marrying of poor virgins
that prior to their dedication, the beneficial ownership, the to prevent their becoming evil women because of their
legal title, the possession and control of all this property poverty; and for the redemption of captivers and the
must be taken to have been vested in that Government. repairing of the churches, and the buying of chalices,
But it must be admitted that after this property was clothing, books, and other things which they might be in
dedicated, the ownership, in contemplation of Spanish seed of, and other similar charitable purposes." (Law 12,
law, was said to have been in God, and there can be no title 28, partida 3.)
doubt that the physical possession and control of these
churches for the purposes for which they were dedicated It is difficult to determine, and still more difficult to state,
was given to the Roman Catholic Church not, as I think, the precise meaning and legal effect of this disposition of
absolutely and conclusively, but limited by and subject to the ownership, possession, and control of the parish
the royal patronage (patronato real) which included the churches in the Philippines; but since it was not possible
right to intervene in the appointment of the for God, in any usual or ordinary sense to take or hold, to
representatives of the church into whose hands the enforce or to defend the legal title to this property, it would
possession and control of the sacred editors were to be seem that a grant to Him by the King or the Government
intrusted. of Spain could not suffice to convey to Him the legal title
of the property set out in the grant, and the truth would
The anomalous status thus created might well have given seem to be that the treatment of this property in
rise to doubts and uncertainties as to the legal title and contemplation of Spanish law as the property of God was
beneficial ownership of this property had not the grantor a mere arbitrary convention, the purpose and object of
and the lawgiver of Spain expressly and specifically which was crystallize the status of all such property in the
provided that neither the Roman Catholic Church nor any peculiar and unusual mold in which it was cast at the time
other person was or could become the owner thereof, and of its dedication.
that all these sacred edifices were to be regarded as
beyond the commerce of men. So long as church and state remained united and so long
"No sacred, religious, or holy thing, devoted to the service as the Roman Catholic Church continued to be the church
of God, can be the subject of ownership by any man, nor of the State, this convention served its purpose well;
indeed, its very indefiniteness seems to have aided in the therewith.
accomplishment of the end for which it was adopted, and
on a review of all the pertinent citations of Spanish law This declaration that these churches are the property of
which have been brought to my attention, I am satisfied God and the provisions which accompanied it, appear to
that the status created by the above-cited law 12 of the me to be precisely equivalent to a declaration of trust by
partidas continued without substantial modification to the the grantor that he would hold the property as trustee for
date of the transfer of sovereignty from the King of Spain the use for which it was dedicated ---- that is, for the
to the United States. But this transfer of sovereignty, and religious edification and enjoyment of the people of the
the absolute severance of church and state which resulted Philippine Islands ---- and that he would give to the Roman
therefrom, render it necessary to ascertain as definitely as Catholic Church the physical possession and control
may be the true meaning and intent of this conventional thereof, including the disposition of any funds arising
treatment of the parish churches in the Philippines as the therefrom, under certain stipulated conditions and for the
property of God, and it is evident that for this purpose we purposes expressly provided by law. In other words, the
must look to the substance rather than the form and people of the Philippine Islands became the beneficial
examine the intention of the grantor and the object he owners of all such property, and the grantor continued to
sought to attain, rather than the words and conventional hold the legal title, in trust nevertheless to hold the
terms whereby that intent was symbolically expressed. property for the purposes for which it was dedicated and
on the further trust to give the custody and control thereof
It is not necessary to go beyond the citations of the to the Roman Catholic Church. If this interpretation of the
majority opinion to see that the objects which the grantor meaning and intent of the convention of Spanish law which
sought to attain were, first, and chiefly, to advance the treated God as the owner of the parish churches of the
cause of religion among the people of the Philippine Philippine Islands be correct, a holding that the King of
Islands and to provide for their religious instruction and Spain had no right to ownership in this property which
edification by furnishing them with parish churches could pass to the United States by virtue of the treaty of
suitable for the worship and glorification of God; second, Paris can not be maintained; and it is to withhold my
to place those sacred edifices under the guardian care and assent from this proposition that I have been compelled to
custody of the church of the State; and, third, to deny to write this separate opinion.
that church and to all others the right of ownership in the
property thus dedicated; and since God could neither take For the purposes of this opinion it is not necessary, nor
nor hold the legal title to this property, the declaration of would it be profitable, to do more than indicate the line of
the King of Spain as set out in the above-cited law, that reasoning which has led me to my conclusions, nor to
when dedicated these churches became in some peculiar discuss at length the question of ownership of this
and especial manner the property of God, was in effect no property, because whether it be held to be in abeyance or
more than a solemn obligation imposed upon himself to in God or in the Roman Catholic Church or in the United
hold them for the purposes for which they were dedicated, States it has been shown without deciding this question of
and to exercise no right of property in them inconsistent ownership that the right to the possession for the purpose
for which it was dedicated is in the Roman Catholic Church,
and while the complaint in this action alleges that the
Roman Catholic Church is the owner of the property in
question, the prayer of the complaint is for the possession
of this property of which it is alleged that church has been
unlawfully deprived; and because, furthermore, if I am
correct in my contention that the legal title to the State-
constructed churches in the Philippines passed to the
United States the virtue of the treaty of Paris, it passed,
nevertheless, subject to the trusts under which it was held
prior thereto, and the United States can not at will
repudiate the conditions of that trust and retain its place
in the circle of civilized nations; and as long as the
property continues to be used for the purposes for which
it was dedicated, the Government of the United States has
no lawful right to deprive the Roman Catholic Church of
the possession and control thereof under the terms and
conditions upon which that possession and control were
originally granted.

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Footnotes

1. 6 Phil. Rep., 286.