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Crim Title VI

Crim Title VI

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Republic of the Philippines
SUPREME COURT
 ManilaEN BANC
G.R. No. L-20569 October 29, 1923THE 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 theinhabitants of the country in native dress and as they appear and can beseen in the regions in which they live, are absence or indecent. Surprisingas it may seem, the question is one of first impression not alone in thePhilippine Islands, but in the United States, Great Britain, and elsewhere.This will explain why a case which otherwise would be heard and voted inDivision has been submitted to the court
in banc 
for decision.On November 24, 1922, detective Juan Tolentino raided the premisesknown as Camera Supply Co. at 110 Escolta, Manila. He found andconfiscated the post-cards which subsequently were used as evidenceagainst J. J. Kottinger, the manager of the company.Out of these facts arose the criminal prosecution of J. J. Kottinger in theCourt of First Instance of Manila. The information filed in court charged himwith having kept for sale in the store of the Camera Supply Co., obsceneand indecedent pictures, in violation of section 12 of Act No. 277. To thisinformation, the defendant interposed a demurrer based upon the groundthat the facts alleged therein did not constitute an offense and were notcontrary to law; but trial court overruled the demurrer and the defendantduly excepted thereto. Following the presentation of evidence by theGovernment and the defense, judgment was rendered finding thedefendant 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 dividethemselves into two general issues. The first point sustained by counsel for the appellant is in nature a technical objection, growing out of thedefendant's demurrer. The second point, in reality the decesive issue, is assuggested in the beginning of the decision. We will take upon theassignments 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. Saidsection 12 which, it is contended by the Government, has here beenviolated, and which, appellant argues, does not apply to the informationand the facts, reads as follow: Any person who writes, composes, stereotypes, prints,publishes, sells, or keeps for sale, distributes, or exhibits anyobscene or indecent writing, paper, book, or other matter, or who designs, copies, draws, engraves, paints, or otherwiseprepares 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 onethousand 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 12does not prohibit the taking, selling, and publishing of alleged obscene andindecent pictures and prints, and second, that the information in this casecharges no offense prohibited by section 12. Recall, however, that the lawprovides 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 itsantecedent, it is intended to cover kindred subjects. The rule of 
ejusdem generis 
invoked by counsel is by no means a rule of universal applicationand should be made to carry out, not to defeat, the legislative intent. Evenif the phrase "or other matter" be cobstrued to mean "or other matter of likekind," 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 concededthat section 12 of Act No. 277 does not cover the present case, there yetremain for application article 571, No. 2, of the penal code, and section730 of the Revised Ordinances of the City of Manila. The section of theRevised Ordinances cited is most specific when it provides in part that noperson 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 thecontent of section 12 of the Libel Law is not as inclusive as it might be, weyet conclude that the information is not fatally defective, and that saidsection 12 covers the alleged facts.We come now to decide the main issue. We repeat that our ownresearches have confirmed the statement of counsel that no one parrallelcase be found. We must perforce reason from the general to the specificand from universal principle to actual fact.The pictures which it is argued offend against the law on account of beingobscene and indecent, disclose six different postures of non-Christianinhabitants of the Philippines. Exhibit A carries the legend "Philippines,Bontoc Woman." Exhibit A-1 is a picture of five young boys and carries thelegend "Greetings from the Philippines." Exhibit A-2 has the legend "IfugaoBelle, Philippines. Greetings from the Philippines." Exhibit A-3 has thelegend "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 andindecent because it thought the post-cards themselves the best evidenceof that fact. The fiscal admitted in open court "that those picturesrepresented the natives (non-Christians) in their native dress." Thedefendant, on the other hand, attempted to show that the pictures as trueto life. Dr. H. Otley Beyer, Professor in the University of the Philippines,corroborated by other witnesses, testified from his studies in various partsof the Islands, such as the Mountain Province, Abra, Palawan, andMindanao and Sulu, that none of the pictures represented poses which hehad not observed on various occasions, and that the costumes worn by thepeople in the pictures are the true costumes regularly worn by them. Aresuch pictures obscene or indecent?The word "obscene" ands the term "obscenity" may be defined as meaningsomething offensive to chastify, decency, or delicacy. "Indeceny" is an actagainst behavior and a just delicacy. The test ordinarily followed by thecourts in determining whether a particular publication or other thing isobscene within the meaning of the statutes, is whether the tendency of thematter charged as obscene, is to deprave or corrupt those whose mindsare open to such immoral influences and into whose hands a publication or other article charged as being obscene may fall. Another test of obscenityis that which shocks the ordinary and common sense of men as anindecency, (29 Cyc., 1315; 8 R. C. L., 312.)The Philippine statute does not attempt to define obscene or indecentpictures, writings, papers, or books. But the words "obscene or indecent"are themselves descriptive. They are words in common used and everyperson of average intelligence understand their meaning. Indeed, beyondthe evidence furnished by the pictures themselves, there is but little scopefor proof bearing on the issue of obscenity or indecency. Whether a pictureis 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 FederalLaws prohibiting the use of the mails for obscene matter and prohibitingthe 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 toplace in the mails any obscene, lewd, or lascivious publication, accordingto the united States Supreme Court and lesser Federal courts, signifiesthat form of immorality which has relation to sexual impurity, and has thesame meaning as is given at common law in prosecutions for obscenelibel. (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 anindictment for despositing an obscene publication in a United States post-office 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 thelaw-maker in their ordinary acceptation and use. As they cannot be said to have acquired any technicalsignificance as applied to some particular matter, calling, or profession, but are terms of popular use, the court mightperhaps with propriety leave their import to the presumedintelligence of the jury. A standard dictionary says that"obscene" mean "offensive to chastity and decency;expressing or presenting to the mind or view something whichdelicacy, purity, and decency forbid to be exposed." This meredictionary definition may be extended or amplified by thecourts in actual practice, preserving, however, its essentialthough, and having always due regard to the popular andproper 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 thematter charged as obscene is to deprave and corrupt thosewhose minds are open to such immoral influences, and intowhose hands a publication of this sort may fall;" and where "itwho suggest to the minds of the young of either sex, or evento persons of more advanced years, thoughts of the mostimpure and libidinous character." So, also, it has been heldthat 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, 38Fed. Rep., 732, observed:"The word "obscene" ordinarily means somethingwhich is offensive to chastity; something that isfoul or filthy, and for that reason is offensive topure-minded persons. That is the meaning of theword in the concrete; but when used, as in thestatute, to describe the character of a book,pamphlet, or paper, it means containingimmodest and indecent matter, the readingwhereof would have a tendency to deprave andcorrupt the minds of those into whose hands thepublication might fall whose minds are open tosuch immoral influences."Laws of this character are made for society in the aggregate,and not in particular. So, while there may be individuals andsocieties of men and women of peculiar motions areidiosyncrasies, whose moral sense would neither be depravednor offended by the publication now under consideration, yetthe exceptional sensibility, or want of sensibility, of suchcannot 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 reachedby it? What is its probable, reasonable effect on the sense of decency, purity, and chastity of society, extending to thefamily, made up of men and women, young boys and girls,
 the family, which is the common nursery of mankind, thefoundation rock upon which the state reposes?. . . To the pure all things are pure, is too poetical for theactualities of practical life. There is in the popular conceptionand heart such a thing as modesty. It was born in the Gardenof Eden. After Adam and Eve ate of the fruit of the tree of knowledge they passed from the condition of perfectibilitywhich some people nowadays aspire to, and, their eyes beingopened, they discerned that there was both good and evil;"and they knew that they were naked; and they sewed figleaves together, and made themselves aprons." From that dayto 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 womenbecome so depraved by the use, or so insensate fromperverted education, that they will not evil their eyes, nor holdtheir 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 andother countries, and which are admitted into Philippines without question,containing illustrations identical in nature to those forming the basis of theprosecution at bar. Publications of the Philippine Government have alsobeen offered in evidence such as Barton's "Ifugao Law," the "PhilippineJournal of Science" for October, 1906, and the Reports of the PhilippineCommission for 1903, 1912, and 1913, in which are found illustrationseither exactly the same or nearly akin to those which are now impugned.It appears therefore that a national standard has been set up by theCongress of the United States. Tested by that standard, it would beextremely doubtful if the pictures here challenged would be held obsceneor indecent by any state of Federal court. It would be particularly unwise tosanction a different type of censorship in the Philippines that in the UnitedStates, 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 cannotbe characterized as offensive to chastity, or foul, or filthy.We readily understand the laudable motives which moved the Governmentto initiate this prosecution. We fully appreciate the sentiments of colleagues who take a different view of the case. We would be the last tooffend the sensibilities of the Filipino people and the sanction anythingwhich would hold them up to ridicule in the eyes of mankind. But weemphasize that we are not deciding a question in political theory or insocial ethics. We are dealing with a legal question predicated on a legalfact, and on this question and fact, we reach the conclusion that there hasnot 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, wewill decide them as they arise.We seem to recall the statement of counsel that the proprietor of thephotographic concern whom he represents would on his own initiativeplace suitable and explicit inscriptions on the pictures so that no one maybe misled as to them. Indeed, he might even go further and out of consideration for the natural sensibilities of his customers, withdraw fromsale certain pictures which can be pointed out to him.We hold that pictures portraying the inhabitants of the country in nativedress and as they appear and can be seen in the regions in which theylive, are not obscene or indecent within the meaning of the Libel Law.Disagreeing therefore with the appellant on his technical argument butagreeing with him on his main contention, it becomes our duty to order thedismissal of the information.
1awph!l.net 
 Judgment is reversed, the information is dismissed, and the defendant-appellant is acquitted with all costs de oficio. So ordered.Republic of the Philippines
SUPREME COURT
 ManilaSECOND DIVISION
G.R. No. L-47757-61 January 28, 1980THE PEOPLE OF THE PHILIPPINES, ABUNDIO R. ELLO, As 4thAssistant of Provincial Bohol VICENTE DE LA SERNA. JR., ascomplainant all private prosecutor,
petitioners,vs.
HON. VICENTE B. ECHAVES, JR., as Judge of the Court of FirstInstance 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, whichpenalizes squatting and similar acts, applies to agricultural lands. Thedecree (which took effect on August 20, 1975) provides:SECTION 1. Any person who, with the use of force, intimidation or threat, or taking advantageof the absence or tolerance of the landowner,succeeds in occupying or possessing the propertyof the latter against his will for residential,commercial or any other purposes, shall bepunished by an imprisonment ranging from sixmonths to one year or a fine of not less than onethousand nor more than five thousand pesos atthe discretion of the court, with subsidiaryimprisonment in case of insolvency. (2ndparagraph is omitted.)The record shows that on October 25, 1977 Fiscal Abundio R. Ello filedwith the lower court separate informations against sixteen personscharging them with squatting as penalized by Presidential Decree No. 772.
 
The information against Mario Aparici which is similar to the other fifteeninformations, reads:That sometime in the year 1974 continuously upto the present at barangay Magsaysay,municipality of Talibon, province of Bohol,Philippines and within the jurisdiction of thisHonorable Court, the above-named accused, withstealth and strategy, enter into, occupy andcultivate a portion of a grazing land physicallyoccupied, possessed and claimed by Atty.Vicente de la Serna, Jr. as successor to thepasture applicant Celestino de la Serna of Pasture Lease Application No. 8919, accused'sentrance into the area has been and is stillagainst the win of the offended party; did thenand there willfully, unlawfully, and feloniouslysquat and cultivate a portion of the said grazingland; said cultivating has rendered a nuisance toand has deprived the pasture applicant from thefull use thereof for which the land applied for hasbeen intended, that is preventing applicant's cattlefrom grazing the whole area, thereby causingdamage and prejudice to the said applicant-possessor-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 raffledto 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 fiveinformations on the grounds (1) that it was alleged that the accusedentered the land through "stealth and strategy", whereas under the decreethe 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 thecultivation of a grazing land.Because of that order, the fiscal amended the informations by using in lieuof "stealth and strategy" the expression "with threat, and taking advantageof the absence of the ranchowner and/or tolerance of the saidranchowner". The fiscal asked that the dismissal order be reconsideredand 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 itspreamble does not mention the Secretary of Agriculture and makesreference 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 applyto pasture lands because its preamble shows that it was intended to applyto squatting in
urban communities 
or more particularly to illegalconstructions in squatter areas made by well-to-do individuals. Thesquating complained of involves pasture lands in rural areas.The preamble of the decree is quoted below:WHEREAS, it came to my knowledge that despitethe issuance of Letter of Instruction No. 19 datedOctober 2, 1972, directing the Secretaries of National Defense, Public Work. 9 andcommunications, Social Welfare and the Director of Public Works, the PHHC General Manager, thePresidential Assistant on Housing andRehabilitation Agency, Governors, City andMunicipal Mayors, and City and DistrictEngineers, "to remove an illegal constructionsincluding buildings on and along esteros and river banks, those along railroad tracks and those builtwithout 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 tohave been unlawfully occupying public andprivate lands belong to
the affluent class 
;WHEREAS, there is a need to further intensify thegovernment's drive against this illegal andnefarious practice.It should be stressed that Letter of Instruction No. 19 refers to illegalconstructions on public and private property. It is complemented by Letter of Instruction No. 19-A which provides for the relocation of squatters in theinterest of public health, safety and peace and order.On the other hand, it should be noted that squatting on public agriculturallands, 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 lawprovides:SECTION 1. It shall be unlawful for any personcorporation or association to enter or occupy,through force, intimidation, threat, strategy or stealth, any public agriculture land including suchpublic lands as are granted to private individualsunder the provision of the Public Land Act or anyother laws providing for the of public agriculturelands in the Philippines and are duly covered bythe corresponding applications for thenotwithstanding standing the fact that title theretostill remains in the Government or for any person,natural or judicial to investigate induce or forceanother to commit such acts.Violations of the law are punished by a fine of not exceeding one thousandor imprisonment for not more than one year, or both such fine andimprisonment in the discretion of the court, with subsidiary imprisonment incase of insolvency. (See People vs. Lapasaran 100 Phil. 40.)The rule of 
ejusdem generis 
(of the same kind or species) invoked by thetrial court does not apply to this case. Here, the intent of the decree isunmistakable. It is intended to apply only to urban communities,particularly to illegal constructions. The rule of 
ejusdem generis 
is merely atool of statutory construction which is resorted to when the legislative intentis 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
 ManilaEN BANC
G.R. No. L-7295 June 28, 1957THE PEOPLE OF THE PHILIPPINES,
plaintiff-appellee,vs.
MARINA PADAN Y ALOVA, COSME ESPINOSA, ERNESTO REYESand JOSE FAJARDO,
defendants.
MARINA PADAN Y ALOVA and JOSE FAJARDO,
defendants-appellants.
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 yGarcia, Cosme Espinosa, and Ernesto Reyes were charged with aviolation of Article 201 of the Revised Penal Code, said to have beencommitted as follows:That on or about the 13th day of September, 1953, in the cityof Manila, Philippines, the said accused conspiring andconfederating together and mutually helping one another, didthen and there willfully, unlawfully and feloniously exhibit or cause to be exhibited inside a building at the corner of CambaExt. and Morga Ext., Tondo, this City, immoral scenes andacts, to wit: the said accused Jose Fajador y Garcia, beingthen the manager and Ernesto Reyes y Yabut, as ticketcollector and or exhibitor, willfully ,unlawfully and feloniouslyhired their co-accused Marina Palan y Alova and CosmeEspinosa y Abordo to act as performers or exhibitionists to

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