This is  an appeal by the defendants from the judgment rendered in this case by the Hon. Adolph Wislizenus.   Juan Casipong  later  withdrew his appeal, so the judgment  is final in his case (p. 16 of the record), while the appeal continues with respect to Gregoria Hongoy.

On March 5,  1909, Juan  Casipong contracted  civil marriage with Teodora Juanico before the justice of the peace of the pueblo of Dumanjug, Cebu, witnesses thereto being Telesforo  Quirante and Macario Pasculado, as shown in the certificate issued by the  acting municipal secretary of that municipality; but two weeks  after the ceremony Casipong left his wife and removed to the barrio of Bolocboloc to live with Gregoria Hongoy, whereupon the offended  wife went to live at her mother's.  For the purpose of assuring herself that her husband was  really living  with another  woman, according to rumors she had heard, the offended  wife went in company with one Hilaria Lumban to said barrio,  where she actually saw her husband, Casipong, maintaining marital relations  with  the  aforesaid Gregoria Hongoy, and although she did not see them  in carnal intercourse, still she saw the two lying side by side and on several occasions going together to different places in that barrio, and that there was no one besides them in the  house where they lived.

Accordingly, the provincial fiscal  on August 24,  1910, filed a complaint in the Court of First Instance of Cebu, charging Juan  Casipong and  Gregoria Hongoy with the crime of concubinage, and instituted this cause, wherein the judge rendered decision the same day, sentencing the defendant Casipong to one  year eight  months and twenty-one days of prision correccional, and the defendant Gregoria Hongoy to two years of banishment, prohibiting her during the period of the sentence from going within a radius of 25 kilometers of the place where the crime was committed, the barrio of Bituon, pueblo of Dumanjug; with half the costs against each party.  From this judgment the defendants appealed, but later  Casipong withdrew his  appeal, as has been stated.

The crime in this case is provided  for and  penalized  by article 437 of the Penal Code, as follows:

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

"The concubine shall be punished with banishment."

From the text of this article it appears that it is an indispensable condition for convicting the husband of concubinage outside of  his home that his conduct  produce scandal and set a bad example among his neighbors, and,  according to a  principle laid down  by the supreme court  of Spain  in applying this article of the Penal Code in that country to a case analogous  to the foregoing, in  a judgment of June 16, 1888, publicity of an  immoral act produces scandal, for by  the  bad example set  it gives offense and wounds the virtuous sentiments of others.  This principle was reiterated in another  judgment of February 25, 1896.

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

It is to be noted in  considering such complex actions that in order to regard them as criminal it is necessary and indispensable that they be performed by a married man and a woman, or by both, the man being the active and the woman the passive agent, each with separate responsibility.  Therefore, notwithstanding the man's  withdrawal of  his appeal and the fact that the appeal taken by Gregoria Hongoy will alone be the subject of the decision, yet the arguments bearing upon the perpetration of the  crime  and proof of it will necessarily affect the man who is the alleged active agent thereof.

On this hypothesis  and as a result of the hearing in this case, it is impossible to affirm that Juan Casipong, husband of Teodora Juanico,  has been living in concubinage with public  scandal with another woman, Gregoria. Hongoy, because of lack of conclusive proof demonstrating  the reality of the crime with the conditions the law requires for punishing the perpetrator thereof and his concubine.

Nothing would  be  easier than  to adduce  proofs of  the criminal act, if  said Casipong really forsook his wife and unlawfully entered into relations with Gregoria Hongoy, for if they have  lived publicly in  concubinage  and in sight of everybody, various witnesses,  residents not only of  the place of residence of the offended wife and her husband but also of the barrio of Bolocboloc, to which the  unfaithful husband removed in order to live with his paramour, could have testified.  The statement of the offended wife and of the witness Hilaria Lumban, who only once saw them together, is not sufficient to prove the aggregate of acts  performed by the two accused, with the scandal produced by the bad example set in their neighborhood.

Under  the prevailing criminal  procedure, the fiscal's sphere of action  is quite extensive, for he  has very direct and active intervention in the trial, assuming as the Government's representative the defense of society, which  has been disturbed by  the crime, and taking public action as though he were the injured party, for the purpose of securing the offender's punishment, whenever the crime has been proved and the guilt of the accused as the  undoubted  perpetrator thereof established.

Perfunctory routine action  is not sufficient performance of this duty, but a  searching and intelligent prosecution is necessary. There should be an effort to submit at the trial the best and strongest evidence available, where from must necessarily appear either the guilt or the complete innocence of the accused.

In  this case it would have  been easy to have submitted abundant evidence  that Juan  Casipong forsook his lawful wife  and lived in concubinage in the village of Bolocboloc with  his paramour  Gregoria Hongoy, for there would have been  more than sufficient witnesses to testify to the actions performed by the defendants,  actions not of isolated occurrence but carried on for many days in sight of numerous residents scandalized by their  bad example. But from  the result of the trial  it is impossible to conclude that  the concubinage  with scandal charged against the defendants has been proved, and therefore  conviction  of the  alleged concubine Gregoria  Hongoy is not according to law.

For these reasons and from  lack of proof of the facts alleged in this case, it is our opinion that the judgment  appealed from should be reversed and Gregoria Hongoy acquitted, as we hereby do, with half of the costs in each instance de oficio.  As the defendant Juan Casipong, through withdrawal  of his appeal, is now serving sentence for a crime which is held in this decision to be not proven,  this case should be respectfully brought to  the attention of the Honorable, the Governor-General, so that, if he deem it just and expedient, he may pardon the said Casipong.  So ordered.

Mapa, Johnson, Carson, and  Moreland, JJ., concur.