The evidence  of record conclusively establishes the performance of the ceremony of marriage between the defendant, Jacinta Mata, and  the complaining  witness,  Marcial Tanedo Tiu Chiu, and leaves no  room  for doubt of the existence of the alleged carnal relations between this woman and the codefendant, Quiterio Sarmiento.  The  judgment of the trial court convicting them of the crime of adultery must, therefore, be affirmed, unless it be held, as contended by counsel for the defendants, that the evidence also shows that the  marriage  between the complaining witness and Jacinta Mata  was bigamous, and that  in view of this  fact, the carnal relations between the defendants should not be adjudged to have constituted  the crime of adultery.

There is evidence in the  record which undoubtedly tends very  strongly  to establish  the contention of  counsel for defendants  that  at the time when the complaining  witness married the defendant,  Jacinta Mata, he had  a wife in China; but we do not deem it necessary to make an  express finding in  this regard,  because we are of opinion that  in the absence of proof of a formal judicial decree declaring the nullity of  the  second alleged bigamous marriage the acts complained of constitute the  crime of adultery.

Article 433 of the Penal Code, defining  and penalizing the crime of adultery, is as  follows:

"Adultery  shall be punished with the penalty of prision correccional in its medium and maximum degrees.

"Adultery  is committed by the married woman who lies with  a man  not  her husband, and by  him who lies with her knowing that she  is married,  although the marriage be afterwards  declared void."

It is quite clear  from the peculiar phrasing of the last paragraph of this article, that the lawmakers intended  to declare adulterous  the  infidelity of a married woman  to her marital vows, even though it should be made to appear that she is entitled to have  her marriage contract declared null and void, until and  unless she actually secures a formal judicial declaration to that effect.  The reason for this provision is thus stated by Groizard, in his commentary upon similar provisions contained in  article 488 of the Spanish Penal  Code of 1870:

"At no time does the bond of matrimony contain a defect which by itself is sufficient to dissolve the  union.  The marriage must be  declared to  be  null  in order that the bond  may  be severed.  "Until  it is so declared, 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  exists - the adultery reunites the essential conditions  required for  its  punishment.  This abundantly satisfies the reason and furthermore is expressly set out in our statute."

Counsel for appellants contends that the provision under consideration is intended merely to  declare that, notwithstanding the fact that  the  marriage is subsequently annulled  because of the adulterous conduct of  the woman, nevertheless the penalty prescribed by the code is to be imposed  and enforced.  But the language  of the article itself does not justify such a  restricted construction, and an examination of the earlier provisions of the Spanish laws upon this subject, from  which this article was  undoubtedly drawn, disposes of the idea that such could have been the intention of the Spanish lawmaker.   Law 81 of Toro, which is law 4,  title 28, book  12 of the Novisima Recopilacion, prescribed that it will not serve as an  excuse to the adulterers  to  allege  and prove "by divers reasons that the marriage  was null on the grounds that the contracting parties were relatives by  blood or affinity  within the fourth degree,  or that either of them  was bound by a former  marriage,  or has taken the vows of chastity, religous vows, or for  any  other reason whatever, as they ought not to have done that which they had no right to do."

In the discussion of this case among the members of the court, the question arose  whether  the provision of  article 433  under consideration  may  not  have been modified  or abrogated by  necessary implication by the publication  of General Orders, No. 68, December,  1899, whereby "certain provisions respecting marriage" were  put in  force by  the command of the Military Governor during the period  of the military occupation of these Islands by the American military forces.

Section III of that Order is  as follows:

"A subsequent marriage contracted by any person during the life  of a former husband or wife of such  person, with any person other than the  former husband or wife, is illegal and void from the beginning, unless  -

"(1)  The former  marriage  has been  annulled or dissolved.

"(2)  Unless such former husband or wife was absent, and  not known to  such person to  be living for the space of seven successive years immediately preceding such  subsequent marriage, or  was generally reputed and was believed by such  person to be dead at the time such  subsequent marriage was contracted; in either of which cases the  subsequent marriage is  valid  until  its  nullity  is adjudged by a competent tribunal."

Keeping in mind the conditions under which this order was published,  and the objects which were  sought to  be obtained by  its provisions, we are of opinion that it was not intended to have the effect,  and that it  did not have the effect of abrogating those just and humane provisions of the Spanish law which secure to the  innocent  party to a  bigamous  marriage certain  rights in the communal property  acquired  during the existence  of the  bigamous relations, and which legitimate the offspring of such unions and recognize the  right of inheritance  of such offspring from the offending spouse.  The bigamous  marriage,  as a marriage,  is  declared to be illegal and void  from the beginning, but this provision is not necessarily in conflict with those statutory provisions  of the Spanish law which prescribe the status of the children resulting from the bigamous  relations  of  the  party,  or the rights of property arising, not as a result of the bigamous marriage but of the communal relations existing thereafter between the parties.

The gist of the crime of adultery under the Spanish law, as under the common  law in  force  in  England  and the United States in the absence of  statutory enactments,  is the danger of introducing spurious heirs into the family, whereby the  rights of the real heirs may be impaired and a man may be charged with the maintenance of a family not his own. And  since, under  Spanish law, legitimate heirs may be begotten of a bigamous marriage, the danger of the introduction  of  spurious heirs is not less  real as a result of the infidelity of the wife of a bigamous marriage than it is in  the case of  a lawful wife;  logically, therefore, the incontinence of the wife of a bigamous marriage, as long as the bigamous relations exist, was  deemed by the Spanish legislator to constitute the crime of adultery, and penalized in like manner as  is the  marital faithlessness of a lawful wife.

The  fact that the law is otherwise  in those jurisdictions where legislation has been largely  influenced by the doctrines and principles of the common  law of England is a natural  consequence of the failure of that system of jurisprudence to recognize the existence of heritable blood of the father in  the fruits of a bigamous marriage.   But it would seem in those States where such children are, by-statute, legitimized, a  consistent system of penal legislation would  demand the penalization of the incontinence of the wife of a bigamous marriage equally with that of a lawful  wife.  Certainly, in this jurisdiction, a statute declaring bigamous marriages illegal and void from the beginning ought  not to  be held to  repeal by necessary  implication the provisions of the  Penal Code penalizing as adulterous the incontinence of the wife of a bigamous marriage unless it be held further  to  repeal by necessary implication the statutes legitimizing the offspring of bigamous  marriages; and as we have said no such effect  can or should be given to the  General Order under consideration.

We conclude, therefore,  that the  provisions  of the  code penalizing as adultery the infidelity of the wife of a bigamous marriage continue in full force and effect.

We find no error in the  proceedings of the court below prejudicial to the rights of the appellants, and the judgment convicting them  of  the  crime  of  adultery and  the sentence imposed upon  them by the trial court should therefore be affirmed.

Arellano, C. J., Mapa, Moreland, and Trent, JJ., concur.