G.R. No. L-5877. September 28, 1954

The defendant, Arturo Mendoza, has appealed from a judgment of the
Court of First Instance of Laguna, finding him guilty of the crime of
bigamy and sentencing him to imprisonment for an indeterminate term of
from 6 months and 1 day to 6 years, with costs.

The following facts are undisputed: On August 5, 1936, the appellant
and Jovita de Asis were married in Marikina, Rizal. On May 14, 1941,
during the subsistence of the first marriage, the appellant was married
to Olga Lema in the City of Manila. On February 2, 1943, Jovita de
Asis died. On August 19, 1949, the appellant contracted another
marriage with Carmencita Panlilio in Calamba, Laguna. This last
marriage gave rise to his prosecution for and conviction of the crime
of bigamy.

The appellant contends that his marriage with Olga Lema on May 14,
1941 is null and void and, therefore, non-existent, having been
contracted while his first marriage with Jovita de Asis August 5, 1936
was still in effect, and that his third marriage to Carmencita Panlilio
on August 19, 1949 cannot be the basis of a charge for bigamy because
it took place after the death of Jovita de Asis. The Solicitor General,
however, argues that, even assuming that appellant’s second marriage to
Olga Lema is void, he is not exempt from criminal liability, in the
absence of a previous judicial annulment of said bigamous marriage; and
the case of People vs. Cotas, 40 Off. Gaz., 3134, is cited.

The decision invoked by the Solicitor General, rendered by the Court
of Appeals, is not controlling. Said case is essentially different,
because the defendant therein, Jose Cotas, impeached the validity of
his first marriage for lack of, necessary formalities, and the Court of
Appeals found his factual contention to be without merit.

In the case at bar, it is admitted that appellant’s second marriage
with Olga Lema was contracted during the existence of his first
marriage with Jovita de Asis. Section of the marriage law (act 3613),
in force at the time the appellant contracted his second marriage in
1941, provides as follows:

Illegal marriages.—Any marriage
subsequently contracted by any person during the lifetime of the first
spouse of such person with any person other than such first spouse
shall be illegal and void from its performance, unless:

(a) The first marriage was annulled or dissolved;

(b) The first spouse had been absent for seven consecutive years at the
time of the second marriage without the spouse present having news of
the absentee being alive, or the absentee being generally considered as
dead and believed to be so by the spouse present at; the time of
contracting such subsequent marriage, the marriage so contracted being
valid in either case until declared null and void by a competent court.

This statutory provision plainly makes a subsequent marriage
contracted by any person during the lifetime of his first spouse
illegal and void from its performance, and no judicial decree is
necessary to establish its invalidity, as distinguished from mere
annulable marriages. There is here no pretense that appellant’s second
marriage with Olga Lema was contracted in the belief that the first
spouse, Jovita de Asis, has been absent for seven consecutive years or
generally considered as dead, so as to render said marriage valid until
declared null and void by a competent court.

Wherefore, the appealed judgment is reversed and the defendant-appellant acquitted, with costs de officio so ordered. .

Pablo, Bengzon, Jugo, Bautista Angelo, Labrador, Concepcion, and Reyes, J.B.L., JJ., concur.

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DISSENTING:

REYES, J.:

I dissent.

Article 349 of the Revised Penal Code punishes with prison mayor “any person who shall contract a second or subsequent marriage before the former marriage has been dissolved”.

Though the logician may say that where the former marriage was void
there would be nothing to dissolve still it is not for the spouses to
judge whether that marriage was void or not. That judgment is reserved
to the courts. As Viada says “La santidad e importancia del matrinonio
no permite que los casados juzguen por si mismos de su nulidad; esta ha
de someterse precisamente al judicio’ del Tribunal competente, y cuando
este declare la nulidad del matrimonio, y solo entonces, se tendra por
nulo; mientras no exista esta declaracion, la presuncion esta siempre a
favor de la validez del matrimonio, y de consiguiente, el que contrae
otro segundo antes de dicha declaracion de nulidad, no puede menos de
incurrir la pena de este articulo.” (3 Viada, Codigo penal p. 275.)

“This is a sound opinion,” says Mr. Justice Tuason p the case of
People vs. Jose Cotas, (CA), 40 Off. Gaz., 3145, “and is in line with
the well-known rule established in cases of adultery, that “until by
competent authority in a final judgment the marriage contract is set
aside, the offense to the vows taken and the attack on the family
exist.”

Padilla and Montemayor, JJ., concur.