This is an appeal by the defendants from a judgment by the Hon. Simplicio del Rosario.

On June 7, 1910, a written and sworn information was filed with the court of the justice of the peace of the pueblo of Pasig, the governmental seat of the Province of Rizal, by Filemon  Andres,  charging  his wife,  Emiliana  Cruz, and Ricardo  Reyes,  with the crime of adultery.  After the required preliminary investigation the  said justice of the peace, deeming  that there were no grounds whereupon to proceed against  the accused, ordered their release  from custody, by an order of the 12th of the following month of July; but, on September 26th of the same year, a written complaint  was presented  against the accused by the  provincial fiscal over the signature of the previous complainant, Filemon Andres, again charging them  with the crime of adultery,  inasmuch as Reyes, one  day in December, 1908, knowing  that Emiliana  Cruz was the wife of the  complainant and that their marriage had not  been annulled, did lie with her.

The evidence  adduced  at the  trial shows that,  because the husband, Filemon Andres, warned his wife, Emiliana Cruz, that she should not allow Ricardo  Reyes to enter her house when he  (Andres)  was absent therefrom, the  wife separated  from  her husband  and  left  the home.  Three witnesses, Luisa Rojas, Esteban Cruz, and Juan Reyes, testified  that, on different occasions,  they  each had seen the accused, Reyes, lying with the woman, Emiliana Cruz; the first occasion was  early  one morning  of  the month of April, 1908, in the kitchen of witness' house, where  they were surprised sleeping together, wherefore witness ejected them  from his house; the second  occasion, one night of  the month of February of that same year, on the azotea of the house of the said accused, Emiliana Cruz, and because witness  was a  relative  of the offended  party and of the accused  Reyes,  he did not wish to testify in  the court of the justice  of the peace, although he advised  the husband to  observe the conduct of the said accused; and the third time, the witness testified he surprised the defendants while they were sleeping together, between 1 and 2 o'clock in the afternoon one day of the aforesaid month of April, in the house of the offended party, and that, as he was a relative of the latter, and also of the accused Reyes, he was unwilling to testify before the justice of the peace.

The court, in view of the evidence adduced  at the trial, and on January 3 of the present year, rendered judgment sentencing the defendants each to the penalty of two years four months and one day of prision correccional and to the payment of the  costs, from which judgment they appealed.

The release of the two accused having been ordered by the justice of the peace, during the preliminary investigation,  for the reason  that  he  deemed that there were not sufficient reasons to warrant a continuation  of  the  proceedings, the  complaint that  was  afterwards  filed  in the Court of First  Instance by the provincial fiscal,  although it bore the signature of the aggrieved  party, Filemon Andres,  could not support the present prosecution and confer jurisdiction upon the court.   Section. 1  of  Act No, 1773 prescribes: 

"Hereafter the  crimes  of adulterio,  estupro, rapto, violacion, calumnia, and injuria,  as defined by the Penal Code of the Philippine Islands, shall be deemed to be public crimes and shall be prosecuted in the  same manner as are all other crimes defined by said Penal Code or  by the  Acts  of the Philippine Commission: Provided,  however,  That no prosecution for the crimes  of adulterio, estupro,  or injuria committed against persons other than public  officials or employees shall  be instituted except upon the complaint of the aggrieved person or of the parents,  grandparents, or guardian of such person."

All public offenses triable in. Courts  of  First Instance or in courts of similar jurisdiction, must be prosecuted by the public prosecutor in the name of  the United States, whether the cause originated  by  virtue of  an information  or was initiated upon complaint.   (Sees. 2 and 3 of General Orders, No. 58.)

A  cause instituted through  an  information filed  by a private person, whether he takes part in the proceedings as the offended party, or does not, must be prosecuted by the public  prosecutor, in the same manner as though the proceedings had been commenced upon an information by an official of the office of the public prosecutor, whose duty it is to prosecute all causes initiated by information or complaint.

Such is the general rule; but section 1 of Act No. 1773 further prescribes that no  prosecution for the crimes of adulterio, estupro, or injuria committed against persons other than public officials or employees shall  be instituted except upon  the complaint of the aggrieved person or of the parents, grandparents, or guardian of such person.

Owing to this special  exception of the law the prosecution  of the said crimes of adutterio, estupro, or injuria can not be originated by the public  prosecutor,  but must be instituted by the offended person, or by his legitimate representatives in case  of his incapacity to take part in the trial, in order that  the court  or the judge  may acquire jurisdiction over  the  persons of the accused and the subject  matter of the action.  It is,  then, indispensable, with respect to these three said crimes, that the written information  be presented by the offended party himself, or by one of the persons who represent him, in case of his incapacity, as prescribed by  law, with the exception of the crime of injuria when committed against public officials or employees, which latter may be prosecuted by the public prosecutor.

It is true that the offended  party,  Filemon Andres, complained of the crime to the justice of the  peace of Pasig;  but this official,  deeming that there was no proof of the commission of the crime complained of, ordered the release of the accused; such action is equivalent to a dismissal  of the preliminary proceedings, and therefore, in order that the cause might again have been initiated, in the Court of First Instance of Rizal, it was indispensable that, in accordance with the  law, a written information should have been presented by the offended  party himself, Filemon Andres; this was not done, inasmuch as the complaint was filed by the provincial fiscal, and  the provisions of law  were  not complied  with  by  merely affixing the signature of Filemon Andres to the complaint, beside that of the said official, nor would it give the court jurisdiction to try the charge  against the defendants for the crime of adultery.  (U. S. vs. Narvas, 14 Phil. Rep.,  410.)

Therefore,  because  of the failure  to comply with the provisions of Act No. 1773, it  is proper, in our opinion, to dismiss  and we hereby  dismiss the cause and declare all proceedings therein null and void.  The costs are assessed de oficio.

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