Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

L-20569 October 29, 1923 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. J. J. KOTTINGER, defendant-appellant. Fisher, Dewitt, Perkins and Brady for appellant. Attorney-General Villa-Real for appellee. MALCOLM, J.: The question to be here decided is whether or not pictures portraying the inhabitants of the country in native dress and as they appear and can be seen in the regions in which they live, are absence or indecent. Surprising as it may seem, the question is one of first impression not alone in the Philippine Islands, but in the United States, Great Britain, and elsewhere. This will explain why a case which otherwise would be heard and voted in Division has been submitted to the court in banc for decision. On November 24, 1922, detective Juan Tolentino raided the premises known as Camera Supply Co. at 110 Escolta, Manila. He found and confiscated the post-cards which subsequently were used as evidence against J. J. Kottinger, the manager of the company. Out of these facts arose the criminal prosecution of J. J. Kottinger in the Court of First Instance of Manila. The information filed in court charged him with having kept for sale in the store of the Camera Supply Co., obscene and indecedent pictures, in violation of section 12 of Act No. 277. To this information, the defendant interposed a demurrer based upon the ground that the facts alleged therein did not constitute an offense and were not contrary to law; but trial court overruled the demurrer and the defendant duly excepted thereto. Following the presentation of evidence by the Government and the defense, judgment was rendered finding the defendant guilty of the offense charged and sentencing him to pay a fine of P50 with subsidiary imprisonment in case of insolvency, and the costs. The five errors assigned by defendant-appellant in this court divide themselves into two general issues. The first point sustained by counsel for the appellant is in nature a technical objection, growing out of the defendant's demurrer. The second point, in reality the decesive issue, is as suggested in the beginning of the decision. We will take upon the assignments of errors as thus classified in order. Act No. 277 is the Philippine Libel Law. But included therein is a section, No. 12, making obscene or indecent publications misdemeanors. Said section 12 which, it is contended by the Government, has here been violated, and which, appellant argues, does not apply to the information and the facts, reads as follow: Any person who writes, composes, stereotypes, prints, publishes, sells, or keeps for sale, distributes, or exhibits any obscene or indecent writing, paper, book, or other matter, or who designs, copies, draws, engraves, paints, or otherwise prepares any obscene picture or print, or who moulds, cuts, casts, or otherwise makes any obscene or indecent figure, or who writes, composes, or prints any notice or advertisement of any such writing, paper, book, print, or figure shall be guilty of a misdemeanor and punished by a fine of not exceeding one thousand dollars or by imprisonment not exceeding one year, or both. Counsel has gone to the trouble to make a careful analysis of section 12 of the Libel Law which is intended to bear out his thesis, first, that section 12 does not prohibit the taking, selling, and publishing of alleged obscene and indecent pictures and prints, and second, that the information in this case charges no offense prohibited by section 12. Recall, however, that the law provides punishment, among other things, for any person who keeps for sale or exhibits any absence or indecent writing, paper, book, or other matter, and that the information charges the defendant, among other things, with having wilfully and feloniously kept for sale, distribution, or exhibition, obscene and indecent pictures. The phrase in the law "or other matter", was apparently added as a sort of "catch-all." While limited to that which is of the same kind as its antecedent, it is intended to cover kindred subjects. The rule of ejusdem generis invoked by counsel is by no means a rule of universal application and should be made to carry out, not to defeat, the legislative intent. Even

if the phrase "or other matter" be cobstrued to mean "or other matter of like kind," pictures and postcards are not so far unrelated to writings, papers, and books, as not to be covered by the general words (Commonwealth vs. Dejardin [1878], 126 Mass., 46; 30 Am. Rep., 652; Brown vs. Corbin [1889], 40 Minn., 508). The line of argumentation is more refined that practical. Once conceded that section 12 of Act No. 277 does not cover the present case, there yet remain for application article 571, No. 2, of the penal code, and section 730 of the Revised Ordinances of the City of Manila. The section of the Revised Ordinances cited is most specific when it provides in part that no person shall "exhibit, circulate, distribute, sell, offer or expose for sale, or give or deliver to another, or cause the same to be done, any lewd, indecent, or absence book, picture, pamphlet, card, print, paper, writing, mould, cast, figure, or any other thing." While admittedly the information is lacking in precision and while the content of section 12 of the Libel Law is not as inclusive as it might be, we yet conclude that the information is not fatally defective, and that said section 12 covers the alleged facts. We come now to decide the main issue. We repeat that our own researches have confirmed the statement of counsel that no one parrallel case be found. We must perforce reason from the general to the specific and from universal principle to actual fact. The pictures which it is argued offend against the law on account of being obscene and indecent, disclose six different postures of non-Christian inhabitants of the Philippines. Exhibit A carries the legend "Philippines, Bontoc Woman." Exhibit A-1 is a picture of five young boys and carries the legend "Greetings from the Philippines." Exhibit A-2 has the legend "Ifugao Belle, Philippines. Greetings from the Philippines." Exhibit A-3 has the legend "Igorot Girl, Rice Field Costume." Exhibit A-4 has the legend "Kalinga Girls, Philippines. Exhibit A-5 has the legend "Moros Philippines." The prosecution produced no evidence proving the postcards obscene and indecent because it thought the post-cards themselves the best evidence of that fact. The fiscal admitted in open court "that those pictures represented the natives (non-Christians) in their native dress." The defendant, on the other hand, attempted to show that the pictures as true to life. Dr. H. Otley Beyer, Professor in the University of the Philippines, corroborated by other witnesses, testified from his studies in various parts of the Islands, such as the Mountain Province, Abra, Palawan, and Mindanao and Sulu, that none of the pictures represented poses which he had not observed on various occasions, and that the costumes worn by the people in the pictures are the true costumes regularly worn by them. Are such pictures obscene or indecent? The word "obscene" ands the term "obscenity" may be defined as meaning something offensive to chastify, decency, or delicacy. "Indeceny" is an act against behavior and a just delicacy. The test ordinarily followed by the courts in determining whether a particular publication or other thing is obscene within the meaning of the statutes, is whether the tendency of the matter charged as obscene, is to deprave or corrupt those whose minds are open to such immoral influences and into whose hands a publication or other article charged as being obscene may fall. Another test of obscenity is that which shocks the ordinary and common sense of men as an indecency, (29 Cyc., 1315; 8 R. C. L., 312.) The Philippine statute does not attempt to define obscene or indecent pictures, writings, papers, or books. But the words "obscene or indecent" are themselves descriptive. They are words in common used and every person of average intelligence understand their meaning. Indeed, beyond the evidence furnished by the pictures themselves, there is but little scope for proof bearing on the issue of obscenity or indecency. Whether a picture is obscene or indecent must depend upon the circumstances of the case. (People vs. Muller [1884], 96 N. Y., 408; 48 Am. Rep., 635.) Considerable light can be thrown on the subject by turning to the Federal Laws prohibiting the use of the mails for obscene matter and prohibiting the importation into the Philippine Islands of articles, etc., of obscene or indecent character. (U. S. Rev. Stat., art. 3893; 36 stat. at L., 135; 7 Fed. Stat. Ann., 1194, sec. 3[b].) "Obscene," as used in the Federal Statutes making it a criminal offense to place in the mails any obscene, lewd, or lascivious publication, according to the united States Supreme Court and lesser Federal courts, signifies that form of immorality which has relation to sexual impurity, and has the same meaning as is given at common law in prosecutions for obscene libel. (Swearingen vs. U. S. [1896], 161 U. S., 446; U. S. vs. Males [1892], 51 Fed., 41; 6 Words and Phrases, 4888, 4889.) The case of United States vs. Harmon ([189], 45 Fed., 414), grew out of an indictment for despositing an obscene publication in a United States postoffice in violator of the Postal Law. Judge Philips said:

The statute does not undertake to define the meaning of the terms "obscene," etc., further than may be implied by the succeeding phrase, "or other publication of an indecent character." On the well-organized canon of construction these words are presumed to have been employed by the law-maker in their ordinary acceptation and use. As they cannot be said to have acquired any technical significance as applied to some particular matter, calling, or profession, but are terms of popular use, the court might perhaps with propriety leave their import to the presumed intelligence of the jury. A standard dictionary says that "obscene" mean "offensive to chastity and decency; expressing or presenting to the mind or view something which delicacy, purity, and decency forbid to be exposed." This mere dictionary definition may be extended or amplified by the courts in actual practice, preserving, however, its essential though, and having always due regard to the popular and proper sense in which the legislature employed the term. Chief Justice Cockburn, in Rex vs. Hicklin (L. R. 3 Q. B., 360), said: "The test of obscenity is this: Where the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall;" and where "it who suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of the most impure and libidinous character." So, also, it has been held that a book is obscene which is offensive to decency or chastity, which is immodest, which is indelicate, impure, causing lewd thoughts of an immoral tendency." U. S. vs. Bennet, 16 Blatchf., 338. Judge Thayer, in U. S. vs. Clarke, 38 Fed. Rep., 732, observed: "The word "obscene" ordinarily means something which is offensive to chastity; something that is foul or filthy, and for that reason is offensive to pure-minded persons. That is the meaning of the word in the concrete; but when used, as in the statute, to describe the character of a book, pamphlet, or paper, it means containing immodest and indecent matter, the reading whereof would have a tendency to deprave and corrupt the minds of those into whose hands the publication might fall whose minds are open to such immoral influences." Laws of this character are made for society in the aggregate, and not in particular. So, while there may be individuals and societies of men and women of peculiar motions are idiosyncrasies, whose moral sense would neither be depraved nor offended by the publication now under consideration, yet the exceptional sensibility, or want of sensibility, of such cannot be allowed as a standard by which its obscenity or indecency is to be tested. Rather is the test, what is the judgment of the aggregate sense of the community reached by it? What is its probable, reasonable effect on the sense of decency, purity, and chastity of society, extending to the family, made up of men and women, young boys and girls, the family, which is the common nursery of mankind, the foundation rock upon which the state reposes? . . . To the pure all things are pure, is too poetical for the actualities of practical life. There is in the popular conception and heart such a thing as modesty. It was born in the Garden of Eden. After Adam and Eve ate of the fruit of the tree of knowledge they passed from the condition of perfectibility which some people nowadays aspire to, and, their eyes being opened, they discerned that there was both good and evil; "and they knew that they were naked; and they sewed fig leaves together, and made themselves aprons." From that day to this civilized man has carried with him the sense of shame, the feeling that there were some things on which the eye the mind should not look; and where men and women become so depraved by the use, or so insensate from perverted education, that they will not evil their eyes, nor hold their tongues, the government should perform the office for them in protection of the social compact and the body politic. As above intimated, the Federal statue prohibits the importation or shipment into the Philippine Islands of the following: "Articles, books, pamphlets, printed matter, manuscripts, typewritten matter, paintings, illustrations, figures or objects of obscene or indecent character or subversive of public order." There are, however, in the record, copies of reputable magazines which circulate freely thruout the United States and other countries, and which are admitted into Philippines without question, containing illustrations identical in nature to those forming the basis of the prosecution at bar. Publications of the Philippine Government have also been offered in evidence such as Barton's "Ifugao Law," the "Philippine Journal of Science" for October, 1906, and the Reports of the Philippine Commission for 1903, 1912, and 1913, in which are found illustrations either exactly the same or nearly akin to those which are now impugned.

It appears therefore that a national standard has been set up by the Congress of the United States. Tested by that standard, it would be extremely doubtful if the pictures here challenged would be held obscene or indecent by any state of Federal court. It would be particularly unwise to sanction a different type of censorship in the Philippines that in the United States, or for that matter in the rest of the world. The pictures in question merely depict persons as they actually live, without attempted presentation of persons in unusual postures or dress. The aggregate judgment of the Philippine community, the moral sense of all the people in the Philippines, would not be shocked by photographs of this type. We are convicted that the post-card pictures in this case cannot be characterized as offensive to chastity, or foul, or filthy. We readily understand the laudable motives which moved the Government to initiate this prosecution. We fully appreciate the sentiments of colleagues who take a different view of the case. We would be the last to offend the sensibilities of the Filipino people and the sanction anything which would hold them up to ridicule in the eyes of mankind. But we emphasize that we are not deciding a question in political theory or in social ethics. We are dealing with a legal question predicated on a legal fact, and on this question and fact, we reach the conclusion that there has not been proved a violation of section 12 of the Libel Law. When other cases predicated on other states of facts are brought to our attention, we will decide them as they arise. We seem to recall the statement of counsel that the proprietor of the photographic concern whom he represents would on his own initiative place suitable and explicit inscriptions on the pictures so that no one may be misled as to them. Indeed, he might even go further and out of consideration for the natural sensibilities of his customers, withdraw from sale certain pictures which can be pointed out to him. We hold that pictures portraying the inhabitants of the country in native dress and as they appear and can be seen in the regions in which they live, are not obscene or indecent within the meaning of the Libel Law. Disagreeing therefore with the appellant on his technical argument but agreeing with him on his main contention, it becomes our duty to order the dismissal of the information. 1awph!l.net Judgment is reversed, the information is dismissed, and the defendantappellant is acquitted with all costs de oficio. So ordered. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-47757-61 January 28, 1980 THE PEOPLE OF THE PHILIPPINES, ABUNDIO R. ELLO, As 4th Assistant of Provincial Bohol VICENTE DE LA SERNA. JR., as complainant all private prosecutor, petitioners, vs. HON. VICENTE B. ECHAVES, JR., as Judge of the Court of First Instance of Bohol Branch II, ANO DACULLO, GERONIMO OROYAN, MARIO APARICI, RUPERTO CAJES and MODESTO S SUELLO, respondents. AQUINO, J.:p The legal issue in this case is whether Presidential Decree No. 772, which penalizes squatting and similar acts, applies to agricultural lands. The decree (which took effect on August 20, 1975) provides: SECTION 1. Any person who, with the use of force, intimidation or threat, or taking advantage of the absence or tolerance of the landowner, succeeds in occupying or possessing the property of the latter against his will for residential, commercial or any other purposes, shall be punished by an imprisonment ranging from six months to one year or a fine of not less than one thousand nor more than five thousand pesos at the discretion of the court, with subsidiary imprisonment in case of insolvency. (2nd paragraph is omitted.) The record shows that on October 25, 1977 Fiscal Abundio R. Ello filed with the lower court separate informations against sixteen persons charging them with squatting as penalized by Presidential Decree No. 772.

The information against Mario Aparici which is similar to the other fifteen informations, reads: That sometime in the year 1974 continuously up to the present at barangay Magsaysay, municipality of Talibon, province of Bohol, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with stealth and strategy, enter into, occupy and cultivate a portion of a grazing land physically occupied, possessed and claimed by Atty. Vicente de la Serna, Jr. as successor to the pasture applicant Celestino de la Serna of Pasture Lease Application No. 8919, accused's entrance into the area has been and is still against the win of the offended party; did then and there willfully, unlawfully, and feloniously squat and cultivate a portion of the said grazing land; said cultivating has rendered a nuisance to and has deprived the pasture applicant from the full use thereof for which the land applied for has been intended, that is preventing applicant's cattle from grazing the whole area, thereby causing damage and prejudice to the said applicantpossessor-occupant, Atty. Vicente de la Serna, Jr. (sic) Five of the informations, wherein Ano Dacullo, Geronimo Oroyan, Mario Aparici, Ruperto Cajes and Modesto Suello were the accused, were raffled to Judge Vicente B. Echaves, Jr. of Branch II (Criminal Cases Nos. 1824, 1828, 1832, 1833 and 1839, respectively). Before the accused could be arraigned, Judge Echaves motu proprio issued an omnibus order dated December 9, 1977 dismissing the five informations on the grounds (1) that it was alleged that the accused entered the land through "stealth and strategy", whereas under the decree the entry should be effected "with the use of force, intimidation or threat, or taking advantage of the absence or tolerance of the landowner", and (2) that under the rule of ejusdem generis the decree does not apply to the cultivation of a grazing land. Because of that order, the fiscal amended the informations by using in lieu of "stealth and strategy" the expression "with threat, and taking advantage of the absence of the ranchowner and/or tolerance of the said ranchowner". The fiscal asked that the dismissal order be reconsidered and that the amended informations be admitted. The lower court denied the motion. It insisted that the phrase "and for other purposes" in the decree does not include agricultural purposes because its preamble does not mention the Secretary of Agriculture and makes reference to the affluent class. From the order of dismissal, the fiscal appealed to this Court under Republic Act No. 5440. The appeal is devoid of merit. We hold that the lower court correctly ruled that the decree does not apply to pasture lands because its preamble shows that it was intended to apply to squatting in urban communities or more particularly to illegal constructions in squatter areas made by well-to-do individuals. The squating complained of involves pasture lands in rural areas. The preamble of the decree is quoted below: WHEREAS, it came to my knowledge that despite the issuance of Letter of Instruction No. 19 dated October 2, 1972, directing the Secretaries of National Defense, Public Work. 9 and communications, Social Welfare and the Director of Public Works, the PHHC General Manager, the Presidential Assistant on Housing and Rehabilitation Agency, Governors, City and Municipal Mayors, and City and District Engineers, "to remove an illegal constructions including buildings on and along esteros and river banks, those along railroad tracks and those built without permits on public and private property." squatting is still a major problem in urban communities all over the country; WHEREAS, many persons or entities found to have been unlawfully occupying public and private lands belong to the affluent class;

WHEREAS, there is a need to further intensify the government's drive against this illegal and nefarious practice. It should be stressed that Letter of Instruction No. 19 refers to illegal constructions on public and private property. It is complemented by Letter of Instruction No. 19-A which provides for the relocation of squatters in the interest of public health, safety and peace and order. On the other hand, it should be noted that squatting on public agricultural lands, like the grazing lands involved in this case, is punished by Republic Act No. 947 which makes it unlawful for any person, corporation or association to forcibly enter or occupy public agricultural lands. That law provides: SECTION 1. It shall be unlawful for any person corporation or association to enter or occupy, through force, intimidation, threat, strategy or stealth, any public agriculture land including such public lands as are granted to private individuals under the provision of the Public Land Act or any other laws providing for the of public agriculture lands in the Philippines and are duly covered by the corresponding applications for the notwithstanding standing the fact that title thereto still remains in the Government or for any person, natural or judicial to investigate induce or force another to commit such acts. Violations of the law are punished by a fine of not exceeding one thousand or imprisonment for not more than one year, or both such fine and imprisonment in the discretion of the court, with subsidiary imprisonment in case of insolvency. (See People vs. Lapasaran 100 Phil. 40.) The rule of ejusdem generis (of the same kind or species) invoked by the trial court does not apply to this case. Here, the intent of the decree is unmistakable. It is intended to apply only to urban communities, particularly to illegal constructions. The rule of ejusdem generis is merely a tool of statutory construction which is resorted to when the legislative intent is uncertain (Genato Commercial Corp. vs. Court of Tax Appeals, 104 Phil. 615,618; 28 C.J.S. 1049-50). WHEREFORE, the trial court's order of dismissal is affirmed. No costs. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-7295 June 28, 1957 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARINA PADAN Y ALOVA, COSME ESPINOSA, ERNESTO REYES and JOSE FAJARDO, defendants. MARINA PADAN Y ALOVA and JOSE FAJARDO, defendantsappellants. Augusto Revilla for appellant Jose Fajardo. W. M. Bayhon for appellant Marina Padan y Alova. Office of the Solicitor General Ambrosio Padilla and Solicitor Jose P. Alejandro for appellee. MONTEMAYOR, J.: In the Court of First Instance of Manila, Marina Padan, Jose Fajardo y Garcia, Cosme Espinosa, and Ernesto Reyes were charged with a violation of Article 201 of the Revised Penal Code, said to have been committed as follows: That on or about the 13th day of September, 1953, in the city of Manila, Philippines, the said accused conspiring and confederating together and mutually helping one another, did then and there willfully, unlawfully and feloniously exhibit or cause to be exhibited inside a building at the corner of Camba Ext. and Morga Ext., Tondo, this City, immoral scenes and acts, to wit: the said accused Jose Fajador y Garcia, being then the manager and Ernesto Reyes y Yabut, as ticket collector and or exhibitor, willfully ,unlawfully and feloniously hired their co-accused Marina Palan y Alova and Cosme Espinosa y Abordo to act as performers or exhibitionists to

perform and in fact performed sexual intercourse in the presence of many spectators, thereby exhibiting or performing highly immoral and indecent acts or shows thereat. Upon arraignment, all pleaded not guilty. Later, however, Marina Padan, with the assistance of her counsel de parte and counsel de oficio, asked for permission to withdraw her former plea of not guilty, which was granted, and upon rearraignment, she pleaded guilty to the charge. In a decision dated October 12, 1953, Marina Padan was found guilty as charged and sentenced to six months and one day of prision correccional and a fine of P200, with subsidiary imprisonment in case of insolvency, not to exceed one-third of the principal penalty, with the accessory penalties prescribed by the law, and to pay the proportionate costs. After trial of the three remaining accused, they were all found guilty; Cosme Espinosa and Ernesto Reyes were sentenced each to not less than six months and one day of prision correccional and not more than one year, one month and eleven days of prision correccional, to pay a fine of P500, with subsidiary imprisonment in case of insolvency, not to exceed one-third of the principal penalty, and to pay the proportionate costs. Jose Fajardo was sentenced to not less than one year, one month and ten days of prision correccional and not more than one year eight months and twenty days, also of prision correccional, to pay a fine of P1,000, with subsidiary imprisonment in case of insolvency, not to exceed one-third of the principal penalty and to pay the proportionate costs. The army steel bed, the army woolen blanket, the pillow, the ladies' panties, and the men's underwear, described in Exhibit C, were declared confiscated. The four accused appealed in the decision, the appeal having been sent to us. Appellants Espinosa and Reyes failed to file their briefs within the period prescribed by law and their appeal was dismissed by resolution of this Court of November 25, 1955, and the decision as to them became final and executory on January 7, 1956, as appears from the entry of judgment. Because of her plea of guilty in the lower court, appellant Marina in her appeal do not question her conviction; she merely urges the reduction of the penalty by eliminating the prison sentence. We do not feel warranted in interfering with the exercise of discretion in this matter, made by the lower court presided by Judge Magno S. Gatmaitan. According to his decision of October 12, 1953, in imposing the sentence, he already considered Marina's plea of leniency, and so despite the recommendation of the fiscal that she be fined P600.00 in addition to the prison sentence of six months and one day, his honor reduced the fine to only P200. We believe that the penalty imposed fits the crime, considering its seriousness. As far as we know, this is the first time that the courts in this jurisdiction, at least this Tribunal, have been called upon to take cognizance of an offense against morals and decency of this kind. We have had occasion to consider offenses like the exhibition of still moving pictures of women in the nude, which we have condemned for obscenity and as offensive to morals. In those cases, one might yet claim that there was involved the element of art; that connoisseurs of the same, and painters and sculptors might find inspiration in the showing of pictures in the nude, or the human body exhibited in sheer nakedness, as models in tableaux vivants. But an actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no redeeming feature. In it, there is no room for art. One can see nothing in it but clear and unmitigated obscenity, indecency, and an offense to public morals, inspiring and causing as it does, nothing but lust and lewdness, and exerting a corrupting influence specially on the youth of the land. We repeat that because of all this, the penalty imposed by the trial court on Marina, despite her plea of guilty, is neither excessive nor unreasonable. Going to the appeal of Jose Fajardo y Garcia, while he does not deny the fact of the commission of the offense charged, he in its that he was not the manager or the person incharge of the show or proceedings on the night of September 13, 1953; that his participation, if he participate at all, was to play the role of an innocent bystander, but that because of his popularity in the neighborhood, being popularly known as a "siga-siga" character, he was requested by the spectators to select the man and the woman to engage or indulge in the actual act of coitus before the spectators; that after making the selection, he did not even care to witness the act but left the scene and returned to it only when he heard a commotion produced by the raid conducted by the police. The evidence on his active participation and that he was the manager and one in charge of the show is however ample, even conclusive. We have carefully examined such evidence, and we are satisfied that they fully support the findings of the trial court. Such facts may be briefly stated as follows: At the corner of Morga Extension and Camba Extension, Tondo, Manila, was a one story building which judging from the picture exhibited is nothing but a shed, with a floor space of eight by fifteen meters which was mainly used for playing ping-pong. A ping-pong table must have been placed in the center and on two sides were built benches in tiers, so that the spectators seated on them could look down and see the game. On September 13, 1953, however, the building was used for a different purpose. It was to be the scene of what was said to be an exhibition of human "fighting fish", the actual act of coitus or copulation. It must have been advertised by word of mouth; tickets therefor were sold at P3 each, and the show was supposed to begin at 8:00 o'clock in the evening. About

that time of the night, there was already a crowd around the building, but the people were not admitted into it until about an hour later, and the show did not begin until about 9:15. The Manila Police Department must have gotten wind of the affair; it bought tickets and provided several of its members who later attended the show, but in plain clothes, and after the show conducted a raid and made arrests. At the trial, said policemen testified as to what actually took place inside the building. About two civilians who attended the affair gave testimony as to what they saw. The customers not provided with tickets actually paid P3 at the entrance to defendant Ernesto Reyes. He also collected tickets. In all, there were about ninety paying customers, while about sixteen were allowed to enter free, presumably friends of the management. Jose Fajardo y Garcia was clearly the manager of the show. He was at the door to see to it that the customers either were provided with tickets or paid P3.00 entrance fee. He even asked them from whom they had bought the tickets. He ordered that an army steel bed be placed at the center of the floor, covered with an army blanket and provided with a pillow. Once the spectators, about 106 in number, were crowded inside that small building, the show started. Fajardo evidently to arouse more interest among the customers, asked them to select among two girls presented who was to be one of the principal actors. By pointing to or holding his hand over the head of each of the two women one after the other, and judging by the shouts of approval emitted by the spectators, he decided that defendant Marina Padan was the subject of popular approval, and he selected her. After her selection, the other woman named Concha, left. Without much ado, Fajardo selected Cosme Espinosa to be Marina's partner. Thereafter, Cosme and Marina proceeded to disrobe while standing around the bed. When completely naked, they turned around to exhibit their bodies to the spectators. Then they indulged in lascivious acts, consisting of petting, kissing, and touching the private parts of each other. When sufficiently aroused, they lay on the bed and proceeded to consummate the act of coitus in three different positions which we deem unnecessary to describe. The four or five witnesses who testified for the Government when asked about their reaction to what they saw, frankly admitted that they were excited beyond description. Then the police who were among the spectators and who were previously provided with a search warrant made the raid, arrested the four defendants herein, and took pictures of Marina and Cosme still naked and of the army bed, which pictures were presented as exhibits during the trial. From all this, there can be no doubt that Jose Fajardo y Garcia contrary to what he claims, was the person in charge of the show. Besides, as found by the trial court and as shown by some of the tickets collected from the spectators, submitted as exhibits, said tickets while bearing on one side printed matter regarding an excursion to Balara to be held on August 30, 1953 from 7:00 a.m. to 5:00 p.m., sponsored by a certain club, on the other side appears the following typewritten form, reading: P3.00 Admit one PLEASURE SHOW Place: P. Morga Ext. and Camba Ext. Time : 8:00 o'clock sharp, and superimposed on the same is the rubber stamped name "Pepe Fajardo," which defendant Fajardo admits to be his name. Considering all the above circumstances, we agree with the trial court that Jose Fajardo is the most guilty of the four, for he was the one who conducted the show and presumably derived the most profit or gain from the same. As regards the penalty imposed by the trial court on appellant Fajardo, we agree with the Solicitor General that the same is correct, except the minimum thereof which is beyond the legal range, and which should be reduced from one year, one month, and ten days of prision correccional to only six months of arresto mayor. With the modification above-mentioned, the decision appealed from by Marina Padan and Jose Fajardo are hereby affirmed, with costs against both. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 159751 December 6, 2006 GAUDENCIO E. FERNANDO and RUDY ESTORNINOS, petitioners, vs. COURT OF APPEALS, respondent.

DECISION

Thereafter, the accused waived their right to present evidence and instead submitted the case for decision.5 QUISUMBING, J.: This petition for review on certiorari assails the Decision dated March 21, 2003 and the Resolution dated September 2, 2003, of the Court of Appeals in CA-G.R. CR No. 25796, which affirmed the Decision of the Regional Trial Court of Manila (RTC), Branch 21, in Criminal Case No. 99-176582. The RTC convicted Gaudencio E. Fernando and Rudy Estorninos for violation of Article 2012 of the Revised Penal Code, as amended by Presidential Decree Nos. 960 and 969, and sentenced each to imprisonment of four (4) years and one (1) day to six (6) years of prision correccional, and to pay the fine of P6,000 and cost of suit. The facts as culled from the records are as follows. Acting on reports of sale and distribution of pornographic materials, officers of the Philippine National Police Criminal Investigation and Detection Group in the National Capital Region (PNP-CIDG NCR) conducted police surveillance on the store bearing the name of Gaudencio E. Fernando Music Fair (Music Fair). On May 5, 1999, Judge Perfecto Laguio of the Regional Trial Court of Manila, Branch 19, issued Search Warrant No. 991216 for violation of Article 201 of the Revised Penal Code against petitioner Gaudencio E. Fernando and a certain Warren Tingchuy. The warrant ordered the search of Gaudencio E. Fernando Music Fair at 564 Quezon Blvd., corner Zigay Street, Quiapo, Manila, and the seizure of the following items: a. Copies of New Rave Magazines with nude obscene pictures; b. Copies of IOU Penthouse Magazine with nude obscene pictures; c. Copies of Hustler International Magazine with nude obscene pictures; and d. Copies of VHS tapes containing pornographic shows.3 On the same day, police officers of the PNP-CIDG NCR served the warrant on Rudy Estorninos, who, according to the prosecution, introduced himself as the store attendant of Music Fair. The police searched the premises and confiscated twenty-five (25) VHS tapes and ten (10) different magazines, which they deemed pornographic. On September 13, 1999, petitioners with Warren Tingchuy, were charged in an Information which reads as follows: That on or about May 5, 1999, in the City of Manila, Philippines, the said accused, did then and there willfully, unlawfully, feloniously, publicly and jointly exhibit indecent or immoral acts, scenes or shows at Music Fair, located at 564 Quezon Blvd., corner Zigay [S]t., Quiapo[,] this City[,] by then and there selling and exhibiting obscene copies of x-rated VHS Tapes, lewd films depicting men and women having sexual intercourse[,] lewd photographs of nude men and women in explicating (sic) positions which acts serve no other purpose but to satisfy the market for lust or pornography to public view. Contrary to law.4 When arraigned, petitioners and Tingchuy pleaded not guilty to the offense charged. Thereafter, trial ensued. The prosecution offered the confiscated materials in evidence and presented the following witnesses: Police Inspector Rodolfo L. Tababan, SPO4 Rolando Buenaventura and Barangay Chairperson Socorro Lipana, who were all present during the raid. After the prosecution presented its evidence, the counsel for the accused moved for leave of court to file a demurrer to evidence, which the court granted. On October 5, 2000, the RTC however denied the demurrer to evidence and scheduled the reception of evidence for the accused. A motion for reconsideration was likewise denied. WHEREFORE, finding no reversible error on the part of the trial court, the decision appealed from is AFFIRMED IN TOTO. Costs against accused-appellants. SO ORDERED.7 Hence the instant petition assigning the following errors: I. Respondent court erred in convicting petitioner Fernando even if he was not present at the time of the raid II. Respondent erred in convicting petitioner Estorninos who was not doing anything illegal at the time of the raid.8 Simply, the issue in this case is whether the appellate court erred in affirming the petitioners conviction. Petitioners contend that the prosecution failed to prove that at the time of the search, they were selling pornographic materials. Fernando contends that since he was not charged as the owner of an establishment selling obscene materials, the prosecution must prove that he was present during the raid and that he was selling the said materials. Moreover, he contends that the appellate courts reason for convicting him, on a presumption of continuing ownership shown by an expired mayors permit, has no sufficient basis since the prosecution failed to prove his ownership of the establishment. Estorninos, on the other hand, insists that he was not an attendant in Music Fair, nor did he introduce himself so.9 The Solicitor General counters that owners of establishments selling obscene publications are expressly held liable under Article 201, and petitioner Fernandos ownership was sufficiently proven. As the owner, according to the Solicitor General, Fernando was naturally a seller of the prohibited materials and liable under the Information. The Solicitor General also maintains that Estorninos was identified by Barangay Chairperson Socorro Lipana as the store attendant, thus he was likewise liable.10 At the outset, we note that the trial court gave petitionersthem the opportunity to adduce present their evidence to disprove refute the prosecutions evidence.11 . Instead, they waived their right to present evidence and opted to submitted the case for decision.a1 12 The trial court therefore resolved the case on the basis of prosecutions evidence against the petitioners. As obscenity is an unprotected speech which the State has the right to regulate, the State in pursuing its mandate to protect, as parens patriae,
1

The RTC acquitted Tingchuy for lack of evidence to prove his guilt, but convicted herein petitioners as follows: WHEREFORE, premises considered, the Court finds accused GAUDENCIO FERNANDO and RUDY ESTORNINOS GUILTY beyond reasonable doubt of the crime charged and are hereby sentenced to suffer the indeterminate penalty of FOUR (4) YEARS and ONE (1) DAY as minimum to SIX (6) YEARS of prision correccional as maximum, to pay fine of P6,000.00 each and to pay the cost. For failure of the prosecution to prove the guilt of accused WARREN TINGCHUY beyond reasonable doubt, he is hereby ACQUITTED of the crime charged. The VHS tapes and the nine (9) magazines utilized as evidence in this case are hereby confiscated in favor of the government. SO ORDERED.6 Petitioners appealed to the Court of Appeals. But the appellate courtlatter affirmed in toto the decision of the trial court, as follows,

the public from obscene, immoral and indecent materials must justify the regulation or limitation. One such regulation is Article 201 of the Revised Penal Code. To be held liable, the prosecution must prove that (a) the materials, publication, picture or literature are obscene; and (b) the offender sold, exhibited, published or gave away such materials.13 Necessarily, that the confiscated materials are obscene must be proved. Almost a century has passed since the Court first attempted to define obscenity in People v. Kottinger.14 There the Court defined obscenity as something which is offensive to chastity, decency or delicacy. The test to determine the existence of obscenity is, whether the tendency of the matter charged as obscene, is to deprave or corrupt those whose minds are open to such immoral influences and into whose hands a publication or other article charged as being obscene may fall.15 Another test according to Kottinger is "that which shocks the ordinary and common sense of men as an indecency."16 But, Kottinger hastened to say that whether a picture is obscene or indecent must depend upon the circumstances of the case, and that ultimately, the question is to be decided by the judgment of the aggregate sense of the community reached by it.17 Thereafter, the Court in People v. Go Pin18 and People v. Padan y Alova, et al.,19 involving a prosecution under Article 201 of the Revised Penal Code, laid the tests which did little to clearly draw the fine lines of obscenity. In People v. Go Pin, the Court said: If such pictures, sculptures and paintings are shown in art exhibits and art galleries for the cause of art, to be viewed and appreciated by people interested in art, there would be no offense committed. However, the pictures here in question were used not exactly for arts sake but rather for commercial purposes. In other words, the supposed artistic qualities of said pictures were being commercialized so that the cause of art was of secondary or minor importance. Gain and profit would appear to have been the main, if not the exclusive consideration in their exhibition; and it would not be surprising if the persons who went to see those pictures and paid entrance fees for the privilege of doing so, were not exactly artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes, but rather people desirous of satisfying their morbid curiosity and taste, and lust, and for love [of] excitement, including the youth who because of their immaturity are not in a position to resist and shield themselves from the ill and perverting effects of these pictures.20 People v. Padan y Alova, et al. in a way reaffirmed the standards set in Go Pin but with its own test of "redeeming feature." The Court therein said that: [A]n actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no redeeming feature. In it, there is no room for art. One can see nothing in it but clear and unmitigated obscenity, indecency, and an offense to public morals, inspiring and causing as it does, nothing but lust and lewdness, and exerting a corrupting influence specially on the youth of the land.21 Notably, the Court in the later case of Gonzales v. Kalaw Katigbak,22 involving motion pictures, still applied the "contemporary community standards" of Kottinger but departed from the rulings of Kottinger, Go Pin and Padan y Alova in that the Court measures obscenity in terms of the "dominant theme" of the material taken as a "whole" rather than in isolated passages. Later, in Pita v. Court of Appeals, concerning alleged pornographic publications, the Court recognized that Kottinger failed to afford a conclusive definition of obscenity, and that both Go Pin and Padan y Alova raised more questions than answers such as, whether the absence or presence of artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes, determine what art is; or that if they find inspiration in the exhibitions, whether such exhibitions cease to be obscene.23 Go Pin and Padan y Alova gave too much latitude for judicial arbitrament, which has permitted ad lib of ideas and "two-cents worths" among judges as to what is obscene or what is art.24

The Court in Pita also emphasized the difficulty of the question and pointed out how hazy jurisprudence is on obscenity and how jurisprudence actually failed to settle questions on the matter. Significantly, the dynamism of human civilization does not help at all. It is evident that individual tastes develop, adapt to wide-ranging influences, and keep in step with the rapid advance of civilization.25 It seems futile at this point to formulate a perfect definition of obscenity that shall apply in all cases. There is no perfect definition of "obscenity" but the latest word is that of Miller v. California which established basic guidelines, to wit: (a) whether to the average person, applying contemporary standards would find the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.26 But, it would be a serious misreading of Miller to conclude that the trier of facts has the unbridled discretion in determining what is "patently offensive."27 No one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive "hard core" sexual conduct.28 Examples included (a) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; and (b) patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.29 What remains clear is that obscenity is an issue proper for judicial determination and should be treated on a case to case basis and on the judges sound discretion. In this case, the trial court found the confiscated materials obscene and the Court of Appeals affirmed such findings. The trial court in ruling that the confiscated materials are obscene, reasoned as follows: Are the magazines and VHS tapes confiscated by the raiding team obscene or offensive to morals? ... Pictures of men and women in the nude doing the sexual act appearing in the nine (9) confiscated magazines namely Dalaga, Penthouse, Swank, Erotic, Rave, Playhouse, Gallery and two (2) issues of QUI are offensive to morals and are made and shown not for the sake of art but rather for commercial purposes, that is gain and profit as the exclusive consideration in their exhibition. The pictures in the magazine exhibited indecent and immoral scenes and actsThe exhibition of the sexual act in their magazines is but a clear and unmitigated obscenity, indecency and an offense to public morals, inspiringlust and lewdness, exerting a corrupting influence especially on the youth. (Citations omitted) The VHS tapes also [exhibit] nude men and women doing the sexual intercourse. The tape entitled "Kahit sa Pangarap Lang" with Myra Manibog as the actress shows the naked body of the actress. The tape exhibited indecent and immoral scenes and acts. Her dancing movements excited the sexual instinct of her male audience. The motive may be innocent, but the performance was revolting and shocking to good minds... In one (1) case the Supreme Court ruled: Since the persons who went to see those pictures and paid entrance fees were usually not artists or persons interested in art to satisfy and inspire their artistic tastes but persons who are desirous of satisfying their morbid curiosity, taste and lust and for [love] of excitement, including the youth who because of their immaturity are not in a position to resist and shield themselves from the ill and perverting effects of the pictures, the display of such pictures for commercial purposes is a violation of Art. 201. If those pictures were shown in art exhibits and art galleries for the cause of art, to be viewed and appreciated by people interested in art, there would be no offense committed (People vs. Go Pin, 97 Phil 418). [B]ut this is not so in this case.30

Findings of fact of the Court of Appeals affirming that of the trial court are accorded great respect, even by this Court, unless such findings are patently unsupported by the evidence on record or the judgment itself is based on misapprehension of facts.31 In this case, petitioners neither presented contrary evidence nor questioned the trial courts findings. There is also no showing that the trial court, in finding the materials obscene, was arbitrary. Did petitioners participate in the distribution and exhibition of obscene materials? We emphasize that mere possession of obscene materials, without intention to sell, exhibit, or give them away, is not punishable under Article 201, considering the purpose of the law is to prohibit the dissemination of obscene materials to the public. The offense in any of the forms under Article 201 is committed only when there is publicity.32 The law does not require that a person be caught in the act of selling, giving away or exhibiting obscene materials to be liable, for as long as the said materials are offered for sale, displayed or exhibited to the public. In the present case, we find that petitioners are engaged in selling and exhibiting obscene materials. Notably, the subject premises of the search warrant was the Gaudencio E. Fernando Music Fair, named after petitioner Fernando. 33 The mayors permit was under his name. Even his bail bond shows that Hhe lives in the same place.34 Moreover, the mayors permit dated August 8, 1996, shows that he is the owner/operator of the store. 35 While the mayors permit had already expired, it does not negate the fact that Fernando owned and operated the establishment. It would be absurd to make his failure to renew his business permit and illegal operation a shield from prosecution of an unlawful act. Furthermore, when he preferred not to present contrary evidence, the things which he possessed were presumptively his.36 Petitioner Estorninos is likewise liable as the store attendant actively engaged in selling and exhibiting the obscene materials. Prosecution witness Police Inspector Tababan, who led the PNP-CIDG NCR that conducted the search, identified him as the store attendant upon whom the search warrant was served.37 Tababan had no motive for testifying falsely against Estorninos and we uphold the presumption of regularity in the performance of his duties. Lastly, this Court accords great respect to and treats with finality the findings of the trial court on the matter of credibility of witnesses, absent any palpable error or arbitrariness in their findings.38 In our view, no reversible error was committed by the appellate court as well as the trial court in finding the herein petitioners guilty as charged. WHEREFORE, the Decision dated March 21, 2003 and the Resolution dated September 2, 2003, of the Court of Appeals affirming the Decision of the Regional Trial Court of Manila, Branch 21, in Criminal Case No. 99176582 are hereby AFFIRMED. SO ORDERED.