The present criminal proceedings were commenced by the presentation of a complaint by Gaudencio Tesoro, the husband of the said Gorgonia Tobias, in the court of the justice of the peace of the municipality of Santa Cruz.   A preliminary  examination  was held by said justice of  the peace and the defendants were held for trial by the Court  of First Instance.  Later the cause was brought on for trial in  the Court  of  First Instance.  The  defendants  were duly arraigned.  Upon  arraignment each plead  not guilty. Later  the defendant, Gorgonia Tobias, asked  for and  obtained permission from the  court to  withdraw her plea  of not guilty and to substitute therefor the plea of guilty.   The trial proceeded against  the  defendant, Regino Noriega,  at the close  of which the Honorable Pedro Concepcion, judge, found  each of the defendants guilty of the  crime charged and sentenced the  defendant,  Regino Noriega,  to be imprisoned for a period of five years of prision correctional, with the accessory penalties provided for by law, to indemnify the offended person in the sum of P500, and in case of insolvency to suffer subsidiary imprisonment in accordance with the provisions of the law, and to pay one-half the costs. Gorgonia Tobias was sentenced to be imprisoned for a period of one year and six months of prision correctional with the accessory penalties provided for by the law, and to pay one-half the costs.   From that sentence the defendant Regino Noriega appealed to  this court and made several  assignments of error.  All of the assignments of error relating to the appellant present questions of fact only.

An examination of the record brought to this court shows, beyond a reasonable doubt, that the defendant and appellant is guilty of the crime charged in  the complaint.   In  view of the very careful analysis of the  proof made by  the lower court we find no reason now for analyzing the same again. The defendant and appellant has been informed of the  facts upon which the lower court relied for its conclusions.  A restatement of the facts, in our  judgment,  can  serve no good purpose.

There is one question, however, presented by the decision of the lower court which neither the appellant nor the appellee  has  discussed.   The lower  court imposed  a  tine  of indemnity  against the appellant in the sum of P500.   We are unable to find any provision of law justifying a judgment of indemnity in cases like the  present.  There was no foundation laid in the complaint for indemnity neither was there any proof adduced during the trial of the cause supporting the conclusion of the lower court in that respect. That part of the sentence of, the lower court must  therefore be revoked.

After a careful examination of  the evidence brought  to this  court and considering the fact that the defendant had been treated with special confidence by the offended person, by taking him into his house and furnishing him with  food and lodging, we are of the opinion that that fact should be treated as a special aggravating circumstance, and that the defendant should be punished with the maximum penalty provided for by the law.   The  sentence of five  years of imprisonment fixed by the lower court is within the maximum grade.  It is, therefore, hereby ordered and decreed that a judgment be entered sentencing the defendant to be imprisoned for a period of five years of prision correctional, with the accessory penalties of the law, and to pay the costs of this action and one-half the costs in the lower court.   So ordered.

Arellano,  C. J.,  Torres, Carson, Trent, and Araullo,  JJ., concur.

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JOHNSON, J.:

The defendants were charged with the crime of adultery. They were each found guilty and sentenced.  The defendant Regino Noriega appealed to this court.   The lower court found him guilty of the crime charged and  sentenced him to be imprisoned for a period of five years of prision correctional, with the accessory penalties provided for by the law, and  to indemnify the offended person in the sum of P500, and  to pay  the  costs.  The said  offended person was the husband of Gorgonia Tobias.  This  court,  upon a consideration of the appeal, modified the sentence of the lower court, relieving the appellant of the necessity of paying the indemnity of P500 for the following reasons: first, that there is no law justifying a judgment for indemnity in favor of offended persons  in  criminal action  for  adultery;  and second, that there was no foundation laid in the complaint for indemnity neither was there any proof adduced during the trial of the cause supporting a  judgment for the same.

Later the offended person, Gaudencio  Tesoro, the husband of Gorgonia Tobias, presented a  motion for a rehearing, basing the same upon two grounds: first, that no objection had been made by the appellant to that  part of the sentence of the lower court imposing the  said indemnity of P500; that no assignment of error had  been  made by the appellant; and that this court, by virtue of Rule 20, had inhibited itself from considering said alleged error by providing that no errors except those affecting the jurisdiction would be considered, unless stated in the assignments of error relied upon in the brief; and second, that the Supreme Court had already established the doctrine in the case of United States vs. Destrito (23 Phil.  Rep.,  28)  that indemnity in cases like the present might be imposed in favor  of the offended person.

With reference to the first  ground of the motion it may be said that Rule 20 does not apply to criminal cases.  The appellants in criminal cases are not required to make assignments of error.   Criminal cases, in fact, are tried de novo in the Supreme  Court, that  is to say, while  the evidence is not taken again in the  Supreme  Court, all of the evidence adduced during the trial of the  cause is again examined. (U. S. vs. Kepner, 1 Phil.  Rep.,  519; 195  U.  S., 100; 11 Phil. Rep.,  669.)  It would follow therefore that the Supreme Court has a right to take notice  of  every error in fact or in law committed by the lower court, even though the same  is not set out in an assignment of error by the appellant.

With reference to the second ground of the motion for a  rehearing it may be  said, first, that the  only authority cited by the appellant in support of his motion is the said case of United States vs. Destrito (supra).  While in that case the lower court did impose indemnity against the convicted persons and in favor of the offended person,  it will be noted upon reading the decision of this court that that question was not discussed.  Inasmuch as the question war, not discussed we do not consider that decision as constituting a precedent in favor of the doctrine contended for here by the offended person.  Where  a question  passes the  court sub silentio, the case in which the question  is so passed is not binding on the court and should not be considered a precedent.   (McGirr vs. Hamilton and Abreu, 30 Phil. Rep., 563; U. S. vs. More, 3 Cranch, 159, 172; Cannon vs. U. S.t 116 U. S., 55; Snow vs.  U. S.,  118 U. S., 346, 354; U. S. vs. Sanges, 144 U. S., 310, 317; Louisville Trust Co. vs. Knott, 191 U. S., 225; Cross vs. Burke, 146 U. S., 82.)

Having reached the conclusion  that the case of United States vs.  Destrito does  not constitute a precedent upon the question which  we are now discussing, we  shall examine the provisions of the law  for the purpose of ascertaining whether or not there is any law justifying indemnity  in favor of the offended person in the crime of adultery.

Title IX  of the  Penal Code  treats of  "crimes  against chastity."  Chapter I  of said title treats  of the crime  of adultery.  Chapter II  treats of  the crime of rape and unnatural crimes.   Chapter  III treats 4of crimes  of public scandal.  Chapter IV treats of the crimes of seduction and corruption of minors.  Chapter V treats of the crime  of abduction.  The last chapter of said title contains "provisions common to the  preceding, chapters" and of course of the chapters of title IX.

From an  examination of each of the chapters relating to the different crimes against chastity, we find no provision justifying the courts in imposing indemnity in, favor of the offended person.  In chapter VI, under the provisions common to the other chapters  of title IX, we find  that article 449 provides for indemnity against the persons found guilty of rape, seduction, or abduction.  Nowhere is there any provision in the Penal  Code for indemnity in case of adultery. Neither have we found any decisions of the supreme court of Spain allowing indemnity in cases like the present.

Act No. 1773 of the United States Philippine Commission however provides for indemnity or  damages in cases like the present.  Said  Act  however provides that the persons injured may bring  a civil action and recover therein civil damages from the guilty person.   Said Act further provides that the action for  civil damages shall be deemed to be an additional remedy,  apart from any  other  remedies which the existing law may afford.  (Act No. 1773, sec. 3.)  It is clear that said Act provides that  the civil damages provided for therein  shall be recovered in a separate and distinct civil action and  not as  an  incident to the criminal action, for the reason that said Act provides that: "Nothing herein contained shall be so construed as to revoke, repeal, or modify any other civil remedy  which the existing law, in such cases, affords."  In other words, in each of the crimes provided for in title IX of the Penal Code in which there existed a civil remedy, the same is not affected by the additional civil action provided for by section 3 of Act No. 1773.

After a careful  consideration of  the law  and the facts, we  have reached the following conclusions: first, that there is no law applicable here which permits the allowance  of civil damages, as indemnity, as a part of the criminal  procedure in case of adultery; second, that Act No. 1773  provides for a civil action for damages in a case of adultery, which civil action is a separate and independent action from the criminal action.  Said Act provides that the aggrieved person, or such person's parents, grandparents, or guardian, may also bring a civil action and recover therein civil damages from the guilty person.

This provision, in our judgment, clearly contemplates that an action for. damages  in a case of adultery must be a separate and distinct action from the criminal action, the same as in a case of libel.   (Ocampo vs.  Jenkins, 14 Phil. Rep., 681.)

For all of the foregoing reasons the motion for a rehearing is denied.

Arellano, C. J., Torres, Carson, and Araullo, JJ., concur.