ARROYO JR V CA

G.R. No. 96602 November 19, 1991

NERI V PEOPLE
G.R. No. 96715 November 19, 1991

FACTS:

Arroyo Jr. and Mrs. Neri were herein convicted by RTC for adultery. While the original
complaint was filed by Dr. Neri, Mrs. Neri’s husband, Dr. Neri later on executed an affidavit of
desistance with the adultery case.

While Mrs. Neri contends that Dr. Neri was actually living with another woman.

ISSUE:

(1) WON adultery herein should be dismissed by an affidavit of desistance by the

complainant?
(2) WON in pari delicto a bar to prosecute adultery / bigamy?

HELD:
(1)No.

ART. 344. ... — The crime of adultery and concubinage shall not be prosecuted except upon a
complaint filed by the offended spouse.
The offended party cannot institute criminal prosecution without including both parties, if they
are both alive, nor in any case, if he shall have consented or pardoned the offenders.

While affidavit of desistance herein is to be given effect as a pardon, it cannot still be a ground
to dismiss the case. While there is a conceptual difference between consent and pardon
in the sense that consent is granted prior to the adulterous act while pardon is given
after the illicit affair, 21 nevertheless, for either consent or pardon to benefit the
accused, it must be given prior to the filing of a criminal complaint.

It should also be noted that while Article 344 of the Revise Penal Code provides that the
crime of adultery cannot be prosecuted without the offended spouse's complaint, once
the complaint has been filed, the control of the case passes to the public prosecutor.

(2) In pari delicto is not a bar to prosecute adultery / concubinage. Except with it amounts to
consent as refered to in second paragraph of Art 344. However, both consent and pardon could
only be used as a defense it it be given before the filing of a proper case.